_____________________________________________________________________________________

_____________________________________________________________________________________

Acquitted with an Asterisk:

Implementing the “New Double Jeopardy”

Exception into Canadian Law

by

Yuce Baykara, LL.B

A thesis submitted in conformity with the requirements

For the degree of Master of Laws (LL.M)

Faculty of Law

University of Toronto

© Copyright by Yuce Baykara (2012)

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Acquitted with an Asterisk:

Implementing the “New Double Jeopardy” exception into Canadian Law

Master of Laws (LL.M) Thesis 2012

Yuce Baykara

Faculty of Law

University of Toronto

Abstract

Since the end of the 20th

century the protection better known to all as double jeopardy

has been under attack. With public pressure put on the United Kingdom government to address

individuals who had been acquitted of violent crimes, the Labour government implemented a

radical overhaul of common law criminal procedural protections. The reform created an

exception to double jeopardy, allowing re-prosecution of acquitted individuals. Many of the

commonwealth countries starting with Australia took the U.K. exceptions and adopted them into

their own criminal justice systems. This paper is going to look at the exception created, and the

factors that lead to the bypass of such a critical legal protection throughout the commonwealth

nations. Then analyze the current state of double jeopardy in Canada to determine if such and

exception is needed; or if any factors from the exception can be adapted to strengthen the

Canadian criminal justice system.

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“Failure is simply the opportunity to begin again, this time more intelligently”

- Henry Ford

To the one who failed me, to those who picked me right back up, and to my partner in crime,

Thank you…

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Contents

Table of Authorities v

List of Appendices x

Introduction 1

The way it has been for centuries: Double Jeopardy in Canada 4

The English did what now? 12

Do you come from a land down under? 23

It’s as Scottish as golf 33

The Kiwi’s take a stand, without doing the Haka 37

Is there a storm coming Mr. Trudeau? 41

What can we learn from the (*)? 50

Conclusion 57

Appendix A 59

Appendix B 61

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Legislation

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule

B to the Canada Act 1982 (U.K.), 1982, c 11.

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (N.S.W).

Criminal Appeals (Double Jeopardy) Bill 2011 (W.A.).

Criminal Code (Double Jeopardy) Amendment Act 2007(Qld).

Criminal Code 1889 (Qld). Criminal Code, RSC 1985, c C-46.

Criminal Justice Act, 2003, (U.K.), 2003, c 44.

Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (S.A.).

Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.).

Criminal Procedures Act 1986 (N.S.W.).

Criminal Procedures Act 2011 (N.Z.) 2011/81.

Criminal Procedures Bill (N.Z), 2004/158-2.

DNA Identification Act, SC 1998, c 37.

New Zealand Bill of Rights 1990, (N.Z.), 1990/109.

Scotland Act 1998 (U.K.), c 46.

United States of America, Constitution (1787).

Jurisprudence

Carter v Canada (Attorney General), (2012) BCSC 886.

DPP v Connelly [1964] AC 1254 HL. Gushue v R [1980] 1 SCR 798, 16 CR (3d) 39, 50 CCC (2d) 417 (SCC).

R v Burton [2001] QCA 133, (Austl). R v C (2002) EWCA Crim 2487.

R v Carroll [2002] HCA 55 (Austl). R v Dunlop (2007) 1 WLR 1657.

R v Gill [1989] 1 SCR 295.

R v Huot, [1969] 1 CCC. 256, 70 DLR (2d) 703 (2:1) (Man CA).

R v J.S. (2007) 230 FLR 275 (Austl). R v Kienapple (1974), 15 CCC (2d) 524, [1975] 1SCR 729 (SCC).

R v Kinnear (2005), 30 CR (6th) 1, 198 CCC (3d) 232 (Ont CA).

R v Meill (2007) EWCA Crim 3130.

R v Moore [1999] 3 NZLR 385 (N.Z.). R v Nikolovski (1996), 11 CCC (3d) 403 (SCC)

R v Oickle, [2000] 2 SCR 3.

R v Rogers (1994), 181 CLR 251 (Austl.).

R v Scheller (No.1) (1976), 32 CCC (2d) 273, 37 CRNS 332 (Ont Prov Ct). R v Sutton, [1970] 2 OR 358, [1970] 3 CCC 152 (CA).

Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 579.

Sinclair v HMA [2007] HCJAC 27 (Scot).

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Government Documents Austl., Commonwealth, Law institute of Victoria, Policy: Double Jeopardy (Criminal Law

Taskforce Report) (Melbourne : Law institute of Victoria, 2010).

Canada, Department of Justice Canada, Report on the prevention of miscarriages of justice

(Ottawa: FPT Heads of Prosecutions Committee Working Group, 2004) (Chair: Rob

Finlayson).

Canada, Law Reform Commission General Principles of Criminal Law project, Criminal Law:

Strict Liability, Working Paper No 2, (Ottawa: Law Reform Commission of Canada, 1974).

N.Z, Commonwealth, Law Commission of New Zealand, Acquittal following prevention of the

course of justice: a response to R v Moore (New Zealand Law Commission Discussion

Paper: Preliminary Paper No. 42, 2000).

N.Z., Commonwealth, Law Commission of New Zealand, Acquittal following prevention of the

course of justice (New Zealand Law Commission Report No. 70, 2001)

Rowen Johns, Commonwealth (Austl.), Double Jeopardy, NSW Parliamentary Library Research

Service, Briefing Paper No 16/03 (2003).

Statistics Canada, 2012. “Police Reported Crime Statistics, 2011.” The Daily, July 24. Statistics

Canada Catalogue no. 85-002-XIE.

U.K., H.C., “Justice for All”, Cmnd 5563 in Sessional Papers, (2002).

U.K., Law Commission of the United Kingdom, Double Jeopardy and Prosecution Appeals:

Report on two references under section 3(1)(e) of the Law Commissions Act 1965 (LAW

COM Paper No. 267), (London: CM 5048, 2001).

U.K., Scottish Law Commission, Discussion paper on double jeopardy (Discussion paper No.

141) (Edinburgh: The Stationery Office, 2009).

U.K., The Inquiry into the matters arising from the death of Stephen Lawrence, Commission

Report of an Inquiry by Sir William Macpherson of Cluny, (London, UK: The Secretary of

State for the Home Department by Command of her Majesty, 1999) Cmnd 4262.

U.K., Law Commission of the United Kingdom, Double Jeopardy: A consultation paper (Law

Commission Consultation paper No 156, 1999).

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Secondary Material: Monographs Archer, Keith, et al. Parameters of Power, 3

rd Ed (Ontario, Canada: Thompson Canada Ltd,

2002).

Bergelson,Vera. Victims’ Rights and Victims’ Wrongs (Stanford California: Stanford Law Books,

2009).

Friedland, Martin L. Double Jeopardy, (Oxford: Clarendon Press, 1969).

Friedland, Martin L. My life in crime and other academic adventures (Toronto: University of

Toronto Press, 2007).

Leyland, Peter. The Constitution of the United Kingdom: A contextual Analysis (Portland,

Oregon: Hart Publishing, 2007).

McAleer, G.J. To Kill Another: Homicide and Natural Justice (New Brunswick, NJ: Transaction

Publishers, 2010).

Sigler, Jay A. Double Jeopardy: The development of a legal and social policy (New York:

Cornell University Press, 1969).

Stuart, Don, Delisle, Ronald J. and Quigley, Tim. Learning Canadian Criminal Procedure, 10th

ed (United States: Carswell, 2010).

Thomas III, George C. Double Jeoaprdy: the history, the law (New York: New York University

Press, 1998).

Secondary Material: Articles Allen, Sue. “Double jeopardy reform will have ‘dangerous’ effect, warns Society” (2000) LS

Gaz R, 10 Feb, 5 (1).

Burton, Kelly. “Reform of the double jeopardy rule on the basis of fresh and compelling

evidence in New South Wales and Queensland” (2004) 11:5 JCULR 84.

Coffin, Kenneth G. “Double Take: Evaluating Double Jeopardy Reform” (2010) 85 Notre Dame

L Rev 771.

Creekpaurn, Kyden. “What’s wrong with a Little more Double Jeopardy? A 21st Century

Recalibration of an ancient individual right" (2007) 44 Am Crim L Rev 1179.

Curtis, Justin W. “The Meaning of Life (or Limb): an originalist proposal for double jeopardy

reform” (2007) 41 U Rich LRev 1007.

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Curtis, Justin W. “The Meaning of Life (or Limb): an originalist proposal for double jeopardy

reform” (2007) 41 U Rich L Rev 991.

Edgely, Michelle. “Truth or Justice? Double Jeopardy Reforms for Queensland: Rights in

Jeopardy” (2007) 7:1 QUTLJJ 108.

Epps, Tome. “Doubts over a second bite” (2002) LS Gaz R 15 Sep, 19.

Fitzpatrick, Ben. “Double Jeopardy: One idea and two myths from the Criminal Justice Bill

2002” (2003) 67 JCL 149.

Gautier, Ulrich. “The power of the Crown to reinstitute proceedings after the withdrawal or

dismissal of charges” (1980) 22 Crim LQ 463.

Hamer, David. “The Expectation of Incorrect Acquittals and the New and Compelling Evidence

Exception to Double Jeopardy”, (2009) 2 CRIM LR 63.

Heller, Kevin Jon. “What happens to the acquitted? (2008) 21 LJIL 663.

Hessick, Carissa Byrne &Hessick, Andrew F. “Double Jeopardy as a limit on punishment”

(2012) 97:1 Cornell L Rev 45.

Khanna, Vikramaditya. “How does double jeopardy help defendants?” (2001) Harvard Law

School John M. Olin Center for Law, Economics and Business Discussion Paper Series,

Paper 315.

Klein, Susan R. “Double Jeopardy’s Demise” (2000) 88:3 CLR 1001.

Lincoln, Robyn. “Should the double jeopardy rule be in jeopardy?” National Legal Eagle (2003,

Vol 9, Issue 2, Article 5).

Lippke, Richard L. “The Case for Reasoned Criminal Trial Verdicts” (2009) 22 Can JL & Juris

313-330 at para. 16.

MacCallum, Victoria. “Law commission puts ‘traditional liberties’ in jeopardy” (2001) LS Gaz

R, 15 Mar, 10.

Matz, Robert. “Dual Sovereignty and the double jeopardy clause: if at first you don’t convict,

try, try, again” (1996) 24:2 Fordham Urb. LJ 353.

McGarry, Mary Elizabeth. “Double Jeopardy Problems presented by two-tier systems” (1980)

69:1 Geo LJ 1525.

Morgan, Ed. “In the Penal Colony: Internationalism and the Canadian Constitution” (1999) 49 U

of Toronto LJ 447.

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Morosin, Michele N. “Double Jeopardy and International Law: Obstacles to Formulating a

General Principle” (1995) 64 nordic J In’t L 261.

Parkinson, Charles, “Double Jeopardy Reform: The New Evidence exception for Acquittals”

(2003) 26:3 UNSW LawJI 603.

Parsonage, Ian. “Issue Estoppel, Perjury and Criminal Procedure” (1977) 8 Syd LR 505.

Poulin, Anne Bowen. “Double Jeopardy Protection from successive prosecution: A proposed

approach” (2003) 92 Geo LJ 1185.

Schumann, Fredrick. “The Appearance of justice: Public Justification in the legal relation”

(2008) 66:2 U Toronto Faculty L Rev 189.

Scott, Jon. “Double Jeopardy: Two Stabs at Justice” (2006) LS Gaz R, 9 Nov, 18.

Scotton, Geoffrey. “Alberta Double jeopardy case said setting a legal precedent – Pled to assault,

charged with murder when the victim died” (1999) The Lawyers Weekly, Apr 23, 18(47).

Swoboda, Sabine. “Paying the Debts – Late Nazi Tribunals before German Courts” (2011) 9:1

JICJ 243.

Waye, Vicki & Marcus, Pauk “Australia and the United States: Two common criminal justice

systems uncommonly at odds, Part 2” (2010) 18:2 Tul J In’t & Comp L 335.

Weisbrot, David. “The historical necessity of law reform” (2006) 9:2 FJLR 129.

Wilkinson, Geoff. (2011, Nov 08) New Laws a second chance to prosecute constables’ murders,

Herald Sun, online: http://www.heraldsun.com.au/news/victoria/new-laws-a-second-

chance-to-prosecute-constables-murders/story-fn7x8me2-1226188138574.

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List of Appendices

APPENDIX A

Chart 1: Police reported crime rate, Canada, 1962 to 2011

Statistics Canada, 2012. “Police Reported Crime Statistics, 2011.” The Daily, July 24. Statistics

Canada Catalogue no. 85-002-XIE. p. 1, Table 252-0051. <http://www.statcan.gc.ca/daily-

quotidien/120724/dq120724b-eng.pdf> (accessed July 27th

, 2012).

APPENDIX B

Chart 2: Police reported crime severity indexes, Canada, 2001 to 2011

Statistics Canada, 2012. “Police Reported Crime Statistics, 2011.” The Daily, July 24. Statistics

Canada Catalogue no. 85-002-XIE. p. 2, Table 252-0052. <http://www.statcan.gc.ca/daily-

quotidien/120724/dq120724b-eng.pdf> (accessed July 27th

, 2012).

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Acquitted with an Asterisk:

Implementing the “New Double Jeopardy” exception into Canadian Law

Yuce Baykara – LL.M Thesis

I. Introduction

Criminal Law is the law that protects the citizens from violence dishonesty and other

“sins with legal definitions1”. Criminal Law is not a one-way street; while it protects the citizen;

it also restricts his liberty by forbidding certain kinds of acts2. While the law is used to govern

behavior in a society, it also has limitations built in order to protect from abuses by society. One

of the most important rules in criminal procedure is the rule of Double Jeopardy. Historically, the

rule against double jeopardy was understood to prohibit both multiple prosecutions and the

imposition of multiple punishments for the same crime3. It was a way to make sure that a person

did not keep paying for the wrongs of an offence. The origin of the maxim can be traced back to

a conflict involving King Henry II and Archbishop Thomas Becket. The clerks accused of a

murder were punished in the ecclesiastical court, which Becket argued further punishment in the

King’s court would violate the maxim Nemo bis in idipsum – no man ought to be punished twice

for the same offence4.

As one of the foundations of the criminal justice system, in recent times, the rule

prohibiting multiple prosecutions and punishments has been changed to allow an exception,

mirroring the criminal law exceptions drafted by the United Kingdom Parliament. Reforms to

this rule have been attempting to limit cases in which guilty people walk, and use double

1 Canada, Law Reform Commission General Principles of Criminal Law project, Criminal Law: Strict Liability, Working Paper No 2, (Ottawa: Law Reform Commission of Canada, 1974), at pg. 1. 2 Ibid. 3 Carissa Byrne Hessick & F. Andrew Hessick, “Double Jeopardy as a limit on punishment” (2012) 97:1 Cornell

L Rev 45, at pg. 2 (QL). 4 Martin Friedland, Double Jeopardy, (Oxford: Clarendon Press, 1969), at pg. 5.

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jeopardy protection as a shield to a subsequent prosecution. On first glance this rule seems like it

must unambiguously benefit defendants5, however it benefits any accused from barring constant

prosecution, harassment from the state for the crime, and the finality of the process once a

decision is reached. The United Kingdom parliament introduced sweeping changes to the double

jeopardy principle, attempting to address victims’ rights, in an attempt to allow the state to re-

prosecute specific cases in the interest of justice. Considerations of fairness in the system would

mandate that criminal law integrate victims into the theory of liability6, and the changes to the

rule attempt to address gap that exists for victims to gain closure to matters where individuals are

acquitted.

With cases visible to the public of individuals being acquitted of violent crimes, English

public pressure help to initiate a review of this age old maxim, and the conclusions of various

agencies brought about the changes in the procedural practice. It has now given the state

prosecuting service the ability to apply for a reinvestigation to the Court of Appeal, and if the

court sees fit, order a retrial on the original chargers. Thus bypassing the age old maxim, and

allowing a second trial for the same crime. Shortly after the English reforms, other common law

jurisdictions, such as Australia, and Scotland reviewed their use of double jeopardy and reformed

their criminal law to reflect the changes recommended and implemented by the English.

Canada has a similar criminal legal system to England but has established double

jeopardy as a right rather than a legal protection. The exceptions adopted in the other

jurisdictions are a form of corrective justice, and Canadian values of fairness and finality, do not

allow the state to go back and prosecute just to correct a decision. Instead of corrective measures,

5 Vikramaditya Khanna, “How does double jeopardy help defendants?” (2001) Harvard Law School John M. Olin

Center for Law, Economics and Business Discussion Paper Series, Paper 315, online:

http://lsr.nellco.org.harvard_olin/315 (accessed June 28, 2012), at pg. 2. 6 Vera Bergelson, Victims’ Rights and Victims’ Wrongs (Stanford California: Stanford Law Books, 2009) at pg. 161.

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similar to those seen in the United Kingdom, the reliance on DNA and other types of compelling

evidence can be implemented before the trial process. This attention to the investigative process

will help better to provide accurate judgments and provide the same outcome as those desired

through eliminating the double jeopardy maxim. The protections in Canada do not need to be

changed or altered; rather implementation of the principles of the exceptions to double jeopardy

can achieve the same end result as intended by the English parliament.

This paper will go over the current state of double jeopardy in Canada, to see if the legal

and philosophical principles that lead to the reforms can be applied to justify a change to the

Canadian practice. Then the paper will illustrate a comparison of the changes to the double

jeopardy maxim in four major common law jurisdictions. The sections will go over the cases

which gained public attention, helping to pressure the respective governments to review their

own criminal procedure practices, and ultimately change their laws concerning double jeopardy.

The final section will analyze the principles of the two exceptions, to see if in whole or in part be

integrated into the Canadian context.

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II. The way it has been for centuries: Double Jeopardy in Canada

Double Jeopardy is a part of a larger legal doctrine known as Res Judicata, which is a

final decision pronounced by a judicial tribunal having the competent jurisdiction over the matter

in dispute and over the parties thereto7. The idea is as old as the common law

8, with its origins

evolving from different religious believers and practices, which were then transplanted into the

common law. Through time and use of the maxim, the common law began employing the idea as

a basic protection for an accused. The protections known as double jeopardy are under the pleas

of autrefois convict and autrefois acquit which enable a judge to discharge a charge9 which has

been already pleaded. The overall protection afforded by the autrefois protections; allow a

decision made by a judicial decider to be made, respected and protected.

The legitimacy of the decision made is also protected by the maxim, and the argument for

using double jeopardy as a protection encompasses the people’s general notion that the judicial

system is basically fair and worth of respect and adherence10

. An effective justice system

requires public confidence in order to realize its ends in society11

. The protection of accuracy of

a decision is crucial in society, and double jeopardy allows for the decision not to be retried and

questioned, because allowing the decision to be overturned and over ruled, would then bring the

legal systems used into question as not being fair and stable.

The general rule granting absolute finality to a decision has been broadly and repeatedly

defended as perhaps the most fundamental rule of double jeopardy12

. As a final decision this

7 Don Stuart, Ronald J. Delisle and Tim Quigley, Learning Canadian Criminal Procedure, 10th ed (United States:

Carswell, 2010), at.1025. 8 Ibid. 9 Martin Friedland, Double Jeopardy, (Oxford: Clarendon Press, 1969), at pg. 22. 10 Kyden Creekpaurn, “What’s wrong with a Little more Double Jeopardy? A 21st Century Recalibration of an

ancient individual right" (2007) 44 Am Crim L Rev 1179, at 1187. 11 Fredrick Schumann, “The Appearance of justice: Public Justification in the legal relation” (2008) 66:2 U Toronto

Faculty L Rev 189, at 203. 12 See Creekpaurn, supra note 10, at 1190.

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allows there to be a close or end to the matter, allowing all the involved parties to carry on with

their lives. It is meant to bring closure to the situation at hand, and allows an accused to know the

decision was final, and nothing more would carry on after13

. To achieve the finality the system

must be underpinned by the sanctity of the verdict14

, meaning that he verdict should be

respected, because it is not in the interest of justice to question every decision made, rather the

people should have faith in the states prosecuting service, and the rules which govern the practice

of this protection. Added to this, is that it requires the investigative procedures carried out by law

enforcement officials to be thorough so there is no questionable decisions made. By allowing a

possible secondary trial for the same charge it may discourage investigative and prosecutorial

efficiency15

because there could be a second chance to investigate.

Double Jeopardy also protects principally against wrongful convictions. It prevents the

unwarranted harassment of the accused by multiple prosecutions16

. An innocent person may be

convicted because they do not have the stamina or resources to fight a second charge17

- coupled

with the fact that the accused then disclosed their complete defense at the first trial18

, thus giving

the prosecution an unfair advantage. It caps the power of the prosecutor and limits their ability of

investigations to the first charge. The prosecutor’s weaponry is so well stocked that some limit

must be placed on his/her power to re-indict the accused for other offences19

13 Note: **The finality principle applies both to conviction and acquittal. As long as a final decision is made

regardless of the outcome the double jeopardy protection affords to the person the ability to move on from the

incident. There will be no further punishment, prosecution, or reopening of the proceedings. Rather it’s the end point

and either release or punishment will follow. 14 Michelle Edgely, “Truth or Justice? Double Jeopardy Reforms for Queensland: Rights in Jeopardy” (2007) 7:1

QUTLJJ 108, at 122 (WL). 15 Robyn Lincoln, “Should the double jeopardy rule be in jeopardy?” National Legal Eagle (2003, Vol 9, Issue 2,

Article 5) at pg.12, online: The National Legal Eagle <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1066&context=nle>. 16 Martin Friedland, Double Jeopardy, (Oxford: Clarendon Press, 1969), at pg.4. 17 Ibid. 18 Ibid. 19 Ibid, at pg.89.

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By respecting the sanctity of the legal system, and of the accused’s autonomy, the

protections find a great balance between these competing factors. The maxim attempts to balance

society’s interest in insuring that the guilty are punished; with the defendant’s interest in

avoiding retrial20

. It’s a classic battle of finality versus accuracy when a verdict is delivered. As a

result of having a rule of double jeopardy, occasionally guilty persons will escape punishment21

.

It does however protect those accused that are truly innocent to never be tried again. From a

general outlook, the system must allow these principles to be respected to help enforce the

legitimacy of the process to how the legal process arrives to a final decision.

In respects to protection from multiple conviction and punishment, double jeopardy

operates in both civil and criminal law22

realms. Attention is given more to the Criminal

incarnation because of its properties of restricting ones liberty. Created through the common law,

the English legal jurisprudence has formed and evolved double jeopardy protection into its

current form through years of application. However, disconnects exist when looking at different

legal systems at the value they place towards double jeopardy. The written form of double

jeopardy did not come to surface until much later in recorded history. Not even after the English

Civil war did the English Bill of Rights of 1689 have a written version of the double jeopardy

provision23

. Some have argued that former Jeopardy principles did not make it on to a recorded

piece of text that was not case law until the adoption of the fifth amendment of the constitution

of the United States of America24

. This has fueled the argument that double jeopardy protection

is a procedural protection and not a right given to the people of a state. Looking at the forms of

20 Mary Elizabeth McGarry, “Double Jeopardy Problems presented by two-tier systems” (1980) 69:1 Geo LJ 1525,

at pg. 1532. 21 Friedland, supra note 16, at pg.4. 22 Don Stuart, Ronald J. Delisle and Tim Quigley, Learning Canadian Criminal Procedure, 10th ed (United States:

Carswell, 2010), at.1025. 23 Kenneth G. Coffin, “Double Take: Evaluating Double Jeopardy Reform” (2010) 85 Notre Dame L Rev 771. 24 U.S. Const. amend. V.

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the double jeopardy throughout the different legal systems illustrates the differentiation of it as a

right or as a procedural safeguard.

Regardless of different interpretations, double jeopardy in its modern form (right or

protection) is concerned with the principle interest of those who have been previously acquitted

from charges to avoid multiple trials for the same offence25

. Barring any subsequent trials,

regardless of new evidence admitted after the verdict is the modern concern for protection of an

accused. The landmark English case of DPP v Connelly26

defined the powers of a court to bar a

second prosecution for a charge which was included in the first indictment27

, defining the scope

of Res Judicata as a plea from an accused rather than inherent protection enforced by the

judiciary. The Connelly court set the limits for multiple trials, punishment, and held that the

doctrine of issue estoppel28

is applicable in criminal cases29

. Up until 1964, the non-

constitutional application of double jeopardy was not so clearly defined and this judicial

articulation set the standard for double jeopardy to be a special plea in Canada and all the other

common law jurisdictions.

Canadian double jeopardy protections are firstly written in the federal Criminal Code of

Canada. The special pleas are applicable in all provinces and territories, and operate in the same

manner conceived by the House of Lords in Connelly, are found in S.60730

of the Canadian

Criminal Code. Subsection 1 allows an accused to plea autrefois acquit, autrefois convict or a

pardon from a charge. This codified plea is set as a special plea to a judge, and must be done

before pleading to an indictment. Autrefois acquit is used when a person has been discharged

25 Carissa Byrne Hessick & F. Andrew Hessick, “Double Jeopardy as a limit on punishment” (2012) 97:1 Cornell L

Rev 45, at pg. 59. 26 DPP v Connelly [1964] AC 1254 HL. [hereinafter Connelly] 27 See Friedland, supra note 16, at pg.15. 28 Note: **Issue estoppel will be discussed below 29 See Friedland, supra note 16 at pg.15. 30 Criminal Code, RSC 1985, c C-46, s 607.

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from jeopardy and is a bar on a subsequent trial. It is important to note that there are many

technical procedural aspects to this pleading, but for the purposes of this study, knowing that

after a trial and discharge, another trial on the same grounds cannot be granted if this is plead to a

court.

The second codified protection is for multiple punishments, which was expanded and

clarified in the decision of R v Kienapple31

. The principle provides that where the transaction

gives rise to two or more offences with substantially the same elements and an accused is found

guilty of more than one of those offences, the accused should be convicted of only the most

serious of the offences32

. These two principles provide protections to the accused by not allowing

the state to prosecute previously decided matters.

The final protection in the Canadian legal system tied to Res Judicata is the principle of

Issue Estoppel, forged from the decision in Connelly. The use of this principle in criminal law

alternately eases and heightens an accused’s burden in attempting to escape a second prosecution

by demonstrating that an issue essential to the current conviction has been previously determined

in the accused’s favor33

. This protection comes from the common law and is not a part of the

criminal code of Canada. It is used as a defense, and not a plea, but still requires a final judgment

from a previous case to stop proceedings in a subsequent matter. The disputed issue needs to be

in the transaction of the new charge, and has to be decided in the favor of the accused.

31 R v Kienapple (1974), 15 CCC (2d) 524, [1975] 1SCR 729 (SCC). 32 R v Kinnear (2005), 30 CR (6th) 1, 198 CCC (3d) 232 (Ont CA), cited in Don Stuart, Ronald J. Delisle and Tim

Quigley, Learning Canadian Criminal Procedure, 10th ed (United States: Carswell, 2010), at.1043. 33 See Stuart, supra note 22, at 1048.

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Together these three protections attempt to restrict further prosecution attempts by the

Crown (government)34

after a final decision. Perhaps the most fundamental rule in the history of

double jeopardy jurisprudence has been that a verdict of acquittal could not be reviewed, on error

without putting a defendant twice in jeopardy35

. This bars appeals on the merits or for factual

issues. Even if the prosecution erroneously excludes critical evidence that may have established

the guilt of the defendant, the prosecution is still prohibited from retrial following an acquittal36

.

The Canadian Criminal Code however does give the Crown the ability to appeal on a

point of law. Under s. 67637

the Attorney General can appeal an acquittal on a point of law38

,

which the double jeopardy protections do not apply to. This makes sense procedurally, because

an accused should not be acquitted or held responsible because of a misinterpretation or

application of law. Rather the system has a safeguard to protect from human errors, and even

situations were Judges misguide juries.

Finally, double jeopardy in Canada is not just limited as a procedural right. Double

Jeopardy is a codified criminal procedural right in the Canadian Charter of Rights and

Freedoms, elevating the protection to a constitutional guarantee. The Supreme Court of Canada

has used the procedural sections of the Charter to protect the rights of individuals caught up in

the justice system – from the first contact with police to the final appeal by restricting

34 **Note: As mentioned before, there have been countless discussions and judicial decisions on the attachment of

jeopardy or what is deemed the same crime. As it is important to the double jeopardy jurisprudence, all that needs to

be known for this entire paper is that, once jeopardy attaches, and a final decision is made about a matter, these rules

are used to protect the finality of that decision. Double Jeopardy protection to the decision stops any other

prosecution or Crown attempt to re-open a case. It provides a person reassurance that the matter is closed once a

final judgment has been reached. 35 Michele N. Morosin, “Double Jeopardy and International Law: Obstacles to Formulating a General Principle”

(1995) 64 nordic J In’t L 261, at 268. 36 See Morosin, Ibid, at 268. 37 Criminal Code, RSC 1985, c C-46, s 676. 38 R v Huot, [1969] 1 CCC. 256, 70 DLR (2d) 703 (2:1) (Man CA).

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overarching powers of the police and crown prosecutors39

to gain conviction by any means

necessary. Under section 11 of the charter, the opening words define it to apply to any person

charged with an offence, becoming the source of all of Canada’s constitutionalized criminal

procedure rights40

. This was the changeover in Canadian society of the double jeopardy defense

from it being a mere procedural protection, to a constitutionally protected right that all person

enjoy and expect.

These national safeguards within the charter do not stipulate any enforcement conditions,

only requiring that the criminal verdict which bars further prosecution on the same acts has

become final41

. The historical sources of Canadian double jeopardy are much the same as the

English42

; however differ greatly on the attachment of jeopardy for the protection to be protected

by the constitutional guarantee. English law does not place the accused in jeopardy until the final

judgment after a trial whether an acquittal or a conviction43

. Canadian criminal procedure allows

the Crown to withdraw a charge, and relay the process. Jeopardy, for the most part does not

attach until a formal indictment is issued. The crown’s right to withdraw a charge before plea is

not unfettered, rather it cannot be used to circumvent the ruling of the trial judge44

which

amounts to an abuse of process45

, allowing jeopardy to attach and dismissal to be a bar for

subsequent trial. This differentiation exists because of the Canadian belief that the process should

be fair towards the accused, so that any abuse of process should not go unpunished and a person

should be afforded an acquittal.

39 Keith Archer, et al, Parameters of Power, 3rd Ed (Ontario, Canada: Thompson Canada Ltd, 2002), at pg. 168. 40 Ed Morgan, “In the Penal Colony: Internationalism and the Canadian Constitution” (1999) 49 U of Toronto LJ

447, at 451. 41 Sabine Swoboda, “Paying the Debts – Late Nazi Tribunals before German Courts” (2011) 9:1 JICJ 243 (QL). 42 Jay A. Sigler, Double Jeopardy: The development of a legal and social policy (New York: Cornell University Press, 1969), at pg. 133. 43 Ibid, at pg. 126. 44 R v Scheller (No.1) (1976), 32 CCC (2d) 273, 37 CRNS 332 (Ont Prov Ct). 45 Ulrich Gautier, “The power of the Crown to reinstitute proceedings after the withdrawal or dismissal of charges”

(1980) 22 Crim LQ 463, at 470.

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All in all, the need for final judgment46

is the qualifying factor afforded to the accused;

for the double jeopardy constitutional protection to stand. This constitutional codification

illustrates how the English common law protection is valued in Canada as an important

procedural protection given to all persons. It is a key aspect of the constitutional allocation of

power and liberty47

, and shows Canadian societies’ commitment to the balance of state interests

and individual autonomy. This is seemingly limited to the Canadian and American example

because of the elevated status of the protection within the constitutions. The constitutional

protections illustrate how Canadians do not want government interests to outweigh the

procedural rights of a person standing trial. Allowing a second trial based on new factors is not

feasible, nor is it accepted as common practice in Canada. Even with the inclusion of a rights

bypass in the Charter contained in s.1, a breach of the s.11(h) double jeopardy protections cannot

be justified by any conceivable reasonable limits (Oakes test) analysis48

. The rules which govern

the attachment of Jeopardy (which is not the concern of this paper) are fair and for the most part

straightforward to understand. The crowns ability to appeal an acquittal is limited to very

specific guidelines, and the person’s interests are constitutionally protected. If a person is tried

twice, they have the special pleas to bar any subsequent proceedings.

46 Canadian Charter of Rights and Freedoms, s 11 (h), Part I of the Constitution Act, 1982, being Schedule B to the

Canada Act 1982 (U.K.), 1982, c 11. 47 Ben Fitzpatrick, “Double Jeopardy: One idea and two myths from the Criminal Justice Bill 2002” (2003) 67 JCL

149 (QL). 48 See Stuart, supra note 22, at 1040.

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III. The English did what now?

It seems unthinkable to get a second chance at important things that occur. How different

the world would be if you could take that failed exam over again, get the goal that lost you the

championship, or even the chance to get the one that got away. The common law was designed

to operate with a model of finality, so things cannot be done over again. Once a charge is laid

and a decision made (good or bad for the accused), it would signal the end of that charge. Until

recently, the same would have been true in England49

. The protection that the age old Double

Jeopardy maxim had afforded to countless individuals throughout centuries has recently been

changed, and adapted to meet the advances in human technology. The pleas of autrefois acquit

and autrefois convict had become firmly embedded principles of the English common law50

, but

have been given an exception so the state can recharge individuals in specific instances.

The state prosecution is given the ability to return to court with new evidence from a

closed decision for review, and potentially have that case re-opened and the charges can be

brought based on new evidence. There is also no statute of limitations, so it can occur three

months after the original trial or thirty years after. In English terms this new exception based

defense is known as “modern Double Jeopardy”, (emphasis placed on the double). The crown

prosecution service in England has been given the ability to take new evidence adduced after

trial and apply for a continuation. For a system based on respecting the trial process and finality,

this new power given to the crown prosecutors puts the values of the legal system into question.

The principle that no one should be tried twice for the same offence has been a part of the

bedrock of the English Criminal Justice system for centuries51

. There must come a stage when a

49 Kyden Creekpaurn, “What’s wrong with a Little more Double Jeopardy? A 21st Century Recalibration of an

ancient individual right" (2007) 44 Am Crim L Rev 1179. 50 See Coffin, supra note 23, at pg. 776. 51 Tome Epps, “Doubts over a second bite” (2002) LS Gaz R 15 Sep, 19.

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defendant is entitled to draw a line under the allegations and move on52

with their lives, and not

be at the mercy of the state.

As discussed earlier, double jeopardy protection affords protections for multiple

prosecutions and punishments for the same act. It was used to protect people from the crown, and

was adapted into legal systems and rights systems around the world. This change in the maxim

came about quickly from public pressure, and has begun a swing towards the state having

unfettered prosecuting powers against their people; something the original notion of double

jeopardy afforded to protect. The primary objective of criminal law is to bring criminals to

justice for harms done and criminal law has its authority from victims’ rights53

. With the nature

of criminal punishment based on requiring a criminal act to be carried out, victims’ rights, and

protections is the driving enforcement tool used by criminal law. This idea is the driving force

behind the decision to reform the criminal justice, bypassing defendant rights and finality, the

state is on a mission to correct all the harms done.

Near the end of the 20th century there were a string of cases which brought these reforms

into the public spotlight in the United Kingdom. In the late 1980’s Billy Dunlop was accused and

acquitted of the murder of Julie Hogg. Many years later he went on to admit to the crimes, but

because of the double jeopardy maxim, he could not be convicted. A string of other similar

crimes occurred (following the Hogg murder, discussed below) which brought public pressures

to address this discrepancy in the legal system. These events ultimately began a push to reform

the criminal justice system, with an investigation initiated by Sir William Macpherson into the

52 Ibid. 53 G.J. McAleer, To Kill Another: Homicide and Natural Justice (New Brunswick, NJ: Transaction Publishers,

2010) at 65.

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murder of Stephen Lawrence54

for presentation to the Law Commission of England. This

evidently led the Law Commission to co-publish a White Paper report entitled “Justice for All”

to be presented to the English parliament outlining their findings and presenting

recommendations to change and evolve criminal procedure and evidence rules. The reports

general goal was to find a way to have fair balance between the rights of the prosecution and the

defense55

. A relaxation of the double jeopardy principle had to be specific so it did not run afoul

to all offences. The White paper nominated ‘very serious’ offences including murder, rape and

armed robbery56

to be applicable to a double jeopardy exemption.

The Labour government at the time was on a crusade to appear “[t]ough on crime”. Not

only did they implement the White paper recommendations on double jeopardy, but they also

reformed the rules of Hearsay and Character Evidence. The Act attempted to remove traditional

safeguards that protected the accused by allowing certain types of hearsay evidence into trial,

and to allow character evidence which traditionally is inadmissible to be admissible. The tough

on crime moniker did not want to allow technicalities in the rules of criminal procedure to let the

guilty walk. The Criminal Justice Act 2003 was seen to be a comprehensive overhaul of the

criminal justice process and at the heart of the new English reforms was a recalibration of the

balance between accuracy and finality57

. The public pressure forced the hand of the government

to abandon the idea that judgment finality is sometimes achieved at the cost of accuracy58

, and

that the law could provide the adequate justice to victims and the community it governs. The

54 U.K., The Inquiry into the matters arising from the death of Stephen Lawrence, Commission Report of an Inquiry

by Sir William Macpherson of Cluny, (London, UK: The Secretary of State for the Home Department by Command

of her Majesty, 1999) Cmnd 4262, see also U.K., H.C., “Justice for All”, Cmnd 5563 in Sessional Papers, (2002). 55 U.K., Law Commission of the United Kingdom, Double Jeopardy and Prosecution Appeals: Report on two

references under section 3(1)(e) of the Law Commissions Act 1965 (LAW COM Paper No. 267), (London: CM 5048, 2001), see also U.K., H.C., “Justice for All”, Cmnd 5563 in Sessional Papers, (2002). 56 Rowen Johns, Commonwealth (Austl.), Double Jeopardy, NSW Parliamentary Library Research Service, Briefing

Paper No 16/03 (2003). 57 See Creekpaurn, supra note 10 at 1182. 58 Ibid.

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relaxation of Double Jeopardy suggests the reinvigoration of a more overt crime control

agenda59

.

To be able to retry an acquitted person would in essence void the previous judgment. The

question then becomes how a government can make rules to by-pass judgments, while still

giving them any force and affect in law. The sanctity of acquittals is the primary obstacle to any

meaningful double jeopardy reform60

. This then goes against the heart of the protection in the

common law, where the state can harass an individual until they “get it right”. The power to

prosecute multiple times involves the danger that government with its vastly superior resources

might wear down the defendant, so that even though innocent he may be found guilty61

.

As mentioned above, the White Paper recommendations limited the double jeopardy

exemption to very specific violent crimes. This however was drafted to include most offences

that carry a penalty with up to a maximum of 25 years in prison. It is important to keep in mind

before any of the reforms were implemented through the Criminal Justice Act 2003 the English

legal system did have legal mechanisms for crown prosecutor appeals to judgments similar to the

Canadian crown appeals process. Under the Criminal Justice Act 1972, s.36 a point of law

arising out of a trial on indictment which resulted in an acquittal can be brought to the court of

appeal62

. This power however is not a review of fact, and that is exactly what the new double

jeopardy reforms would allow the Crown Prosecution Service63

to do. These rules are in addition

to the procedures laid out for acquittals which in some instances allow the state to retry an

individual. It is also in addition to the previous rules regarding tainted acquittals and how those

59 Ben Fitzpatrick, “Double Jeopardy: One Idea and Two myths from the Criminal justice Bill 2002” (2003) 67 JCL

149 (QL). 60 Justin W. Curtis, “The Meaning of Life (or Limb): an originalist proposal for double jeopardy reform” (2007) 41

U Rich LRev 1007, see also U.K., H.C., “Justice for All”, Cmnd 5563 in Sessional Papers, (2002). 61 See Creekpaurn, supra note 10 at 1191. 62 See Law Commission of the United Kingdom, supra note 55 at 17. 63 Hereinafter “CPS”

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types of decisions can be retried. But what has brought the attention of legal commentators and

scholars to this exemption on new and compelling evidence is the bypass function the state has

for a previous verdict and how it is achieve even with a judgment in place.

In practical application the changes to double jeopardy still provide protections for the

accused and respect the finality of the judgment to a degree. The Criminal Justice Act 2003 sets

out the procedure for a retrial when there is compelling “new” evidence of guilt and the court is

satisfied that it is in the interests of justice to quash the acquittal; and that power should apply

equally to acquittals which have already taken place before the law is changed64

. These changes

also do not compromise the integrity of the burden of proof on the prosecution; rather, the

burden is raised (more than beyond a reasonable doubt) to a higher standard so it can justify a

retrial.

Crown prosecutors may have a second bite at the apple only if new and compelling

evidence comes to light that creates doubt on the validity of the acquittal verdict65

. If new

evidence is brought forward after an acquittal, the Department of Public Prosecutions (DPP) has

the ability to reopen a case by applying for a quashing order of the original verdict and

application for retrial on the grounds of new evidence for the qualifying offences66

. For non-

qualifying offences (contained in schedule 5 of the Act), the common law or “old” Double

Jeopardy maxim still applies. The investigation process needs to take place to determine if such

an application is needed to lobby the Court of Appeal to quash the original verdict and order a

new trial based on the new evidence.

To grant a new trial and quash the existing acquittal, the evidentiary standard to be met is

not merely beyond a reasonable doubt (the standard in criminal trials). Rather the Court of

64 See Law Commission, supra note 55. 65 See Curtis, supra note 60, at 1001. 66 Criminal Justice Act, 2003, (U.K.), 2003, c 44, Sch 5, Part 1.

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Appeal is looking at the evidence to determine if it is highly probable that the defendant is guilty

of the offence67

. What is troubling about this, is the standard requires to make a quasi-judgment

about the evidence presented, thus almost making a concluding to the findings. By adhering to

this standard the court of appeal is granting a retrial on evidence that points to guilt. It is granting

a conclusive finding before the trial, indirectly leading the decision for a potential jury, and

pointing to guilt of the accused without the trial process. This is a very dangerous standard,

because it not only voids double jeopardy, but it also puts the presumption of innocence into

question, making the trial only a formality because the Court of Appeal had already ruled on the

weight of the new and compelling evidence.

If a quashing order is granted than a new charge will be laid, and it is treated as a

continuation of the original trial. The original evidence presented in the first trial cannot be used;

rather, the retrial is based on the newly admitted evidence. Any new evidence has to meet the

standard that it was not adduced in the proceeding in which the person was acquitted; it can only

have been adduced after the trial. The right to trial by jury will be restricted because juries will

be informed of a defendant’s previous conviction and people could find themselves locked up on

suspicion that they may commit a crime68

, which is a direct result of the prejudice from potential

juries. But the type of evidence that would be admitted would have to be reliable, substantial and

highly probative of the case against the acquitted person69

.

There is mention that a defendant may elect to have a Judge only trial, so that the charges

will be weighed on the merits of the new evidence and not the character of the person. The new

evidence standard is primarily targeted at blood and tissue samples from decades old trials that

67 Ben Fitzpatrick, “Double Jeopardy: One Idea and Two myths from the Criminal justice Bill 2002” (2003) 67 JCL

149 (QL). 68 Victoria MacCallum, “Law commission puts ‘traditional liberties’ in jeopardy” (2001) LS Gaz R, 15 Mar, 10. 69 Rowen Johns, Commonwealth (Austl.), Double Jeopardy, NSW Parliamentary Library Research Service, Briefing

Paper No 16/03 (2003), Accord U.K., H.C., “Justice for All”, Cmnd 5563 in Sessional Papers, (2002).

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resulted in acquittals before DNA testing was available70

. It is a function used to clear up

discrepancies from the past to almost correct the judgment made. The DNA-test based rationale

is perhaps more persuasive71

as new and compelling evidence, because it uses the notion that the

original trial was incomplete without this evidence, and is in the interest of justice to present the

new evidence to come to a more accurate conclusion.

Not only did the English parliament believe that this should be the practice for the

criminal justice system going forward, but made sure to apply the new exception to cases from

the past to correct the injustices that influenced these changes. It was used as a retroactive

correction (grandfathered justice). By no means does this legislation allow incomplete initial

investigations if further evidence could be adduced later72

. Rather the “new and compelling”

evidence standard greatly narrows the range of acquittals for retrial, and thus insures that most

acquittals will stand final73

.

“New” Double Jeopardy provides for multiple layers of procedural and substantive

safeguards to ensure that the relaxed double jeopardy standards are not susceptible to abuse74

.

The Department of Public Prosecutions must have a full investigation to allow the new evidence

to be brought forward. The policing process must occur before it can be determined that the

evidence has weight to quash the original acquittal. Here the DPP serves as a gatekeeper again:

giving personal consent before the quashing application may proceed to court75

.

After the investigation, the evidence is presented to the court of Appeal, and their job as

mentioned before is to weigh the evidence. However, added to the previously discussed “new

70 See Curtis, supra note 60, at 1001. 71 See Fitzpatrick, supra note 67. 72 Sue Allen, “Double jeopardy reform will have ‘dangerous’ effect, warns Society” (2000) LS Gaz R, 10 Feb, 5 (1). 73 See Creekpaum, supra note 10, at 1192. 74 See Curtis, supra note 60, at 1022. 75 See Creekpaum, supra note 10, at 1198.

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and compelling” aspect to the evidence, the Court of appeal must also determine if quashing the

acquittal is in the interest of Justice76

. The Court of Appeal balance the two competing factors

with the idea that, if there was to be a retrial would it be fair, and will adhere to the principles of

the adversarial system while serving the interest of justice.

It is not just a clear cut “open & shut” system to grant this double jeopardy exemption.

Added to these safe guards are the DPP and CPP can only apply once to quash any acquittal to

the Court of Appeal77

. And any decision by the Court of Appeal can be appealed to the House of

Lords by either the accused or the Crown78

. These legal “levies” are both used as safeguards for

the trial process, but also there to serve justice. It’s a recalibration with some fairness to both

crown and accused.

The Criminal Justice Act 2003 came into effect in 2006, and right away the government

used the retroactive clause to bypass Double Jeopardy protections, and attempt to convict

previous accused. However with the creation of the new and compelling and interest of justice

standards the Court of Appeal was not quashing previous acquittals as easily as the government

had hoped.

The most notable application by the DPP was for the retrial of R. v Dunlop79

in which the

DPP where having a difficult time justifying to the court that a confession of guilt after the

original trial was new and compelling evidence. The court of appeal was hesitant to grant a

retrial, in the name of public interest because it would be difficult to hold a fair hearing without

bias because of all the attention. Billy Dunlop was eventually convicted because the confession

was deemed sufficient, but it was without caution on behalf of the court.

76 Criminal Justice Act, 2003, (U.K.), 2003, c 44, s 77. 77 See Creekpaum, supra note 10, at 1199. 78 Criminal Justice Act, 2003, (U.K.), 2003, c.44, s 81. 79 R v Dunlop (2007) 1 WLR 1657.

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Contrast that with the case of R v Meill80

and the court again was very hesitant to admit a

past confession as new and compelling evidence. It again would be difficult to do justice because

it would confuse a jury on the probative value of the new evidence. Doubts may be raised

regarding the credibility both of a confession and the person to whom it was supposedly made,

but post-acquittal confession evidence still may be compelling depending on the circumstances81

.

In R v C 82

which was originally tried in 2002, the victim was incapacitated which did not

allow her to give testimony at the trial, so there was no evidence to convict. In 2009 she was

finally capable to give an account of the events, and the DPP claimed that this was “new and

compelling” evidence, which reopened the matter and lead to the conviction of C. The new

evidence that is presented needs to be considered with very high standards to the evidentiary

rules, if not then there would be wide spread application and easy permission for retrials.

The difference between the types of evidence that potentially may trigger a retrial is still

difficult to assess. From its creation to now about 10 years after the passing of the CJA, it seems

the DNA evidence will more likely prove ‘new and compelling’ than confessions or belated

allegations83

. Testing the difference has been limited to the case application because it is not used

in a widespread fashion. The three mentioned cases are of a handful the Court of Appeal has

dealt with in the new Double Jeopardy era. There is no one version that is used as precedent;

rather all applications by the DPP are judged on a case by case basis. By integrating a public

interest requirement it allows the Court of Appeal to weigh each case on its merits, and

successful quashing orders essentially pass if the new evidence can demonstrate guilt and error

of judgment from the first trial.

80 R v Meill (2007) EWCA Crim 3130. 81 David Hamer, “The Expectation of Incorrect Acquittals and the New and Compelling Evidence Exception to

Double Jeopardy”, (2009) 2 CRIM LR 63. 82 R v C (2002) EWCA Crim 2487. 83 Jon Scott, “Double Jeopardy: Two Stabs at Justice” (2006) LS Gaz R, 9 Nov, 18.

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Many critiques believed that changing double jeopardy and quashing previous judgments

would erode the status of an acquittal so that trials ending in acquittal would be seen as merely

provisional84

. It does put the sanctity of the acquittal into question; however it does not give the

Court of Appeal a job that is foreign to them. If you compared the application for a quashing

order to a crown appeal, it then becomes evident that they share the same purpose. The only

difference of course is that it’s an appeal of law vs. fact. Just because a DPP investigation has

concluded that evidence they found is new and compelling, doesn’t automatically guarantee the

acceptance by the Court of Appeal. The legislative purpose of the CJA seems to favor DNA

evidence, but it gives the discretion to the legal system, while injecting some sort of public

interest dimension into the decision. If you look at it as more of an appeal then disregarding

Double Jeopardy, then it might not seem so bad.

The Labour Party’s ‘tough on crime’ attitude required a recalibration of rules that are not

rights in the UK, to achieve their overall goal of a victim oriented justice system. A high price is

paid when erroneous acquittals are allowed to remain85

, so these changes in the UK protect from

a guilty person attempting to manipulate the “game” to secure his freedom86

. This came at the

cost of the legitimacy of the UK system itself. Finality of a trial, as codified in the rule against

double jeopardy represents an enduring and resounding acknowledgment by the state that it

respects the principle of limited government and the liberty of the subject87

. As important as

victims are in the criminal justice process, bypassing specific safeguards to get the correct

judgment might make sense in a specific case. However, a second chance at prosecution would

84 Victoria MacCallum, “Government states case for ending double jeopardy” (2000) LS Gaz R, 2 Nov, 4(3). 85 See Curtis, supra note 60, at 1021, see also U.K., H.C., “Justice for All”, Cmnd 5563 in Sessional Papers, (2002). 86 See Coffin, supra note 23, at 798. 87 Ibid, at 804.

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enhance the likelihood of wrongful convictions88

, and having due process rights serves as a vital

safeguard against the unjustified curtailment (by the state) of the defendants moral rights89

.

The English Parliament reiterated that for such reforms to benefit society the criminal

justice system and its processes should be flexible and responsive to social and cultural changes

and therefore need to be continually updated and modernized90

. There is a strong argument that

this application of the new double jeopardy would be for only a handful of cases91

. Practical

application is limited and protected by the legal system based on the difficult evidentiary burdens

needed to be met before a retrial is ordered.

The end result is a system that allows retrials for very serious crimes. The UK criminal

justice system is attempting to tip the scale in favor of victim oriented justice. There is no

mistake that criminal justice is indeed a crude balance of interests92

, but compromising the

essence of the criminal justice system to correct cases from the past, might be steep. Double

Jeopardy relaxation in the UK should not simply be analyzed in terms of what it can produce, but

in terms of what it actually says about the relationships between citizens and the state93

. The state

in this case needs the ability to correct “wrongs” instead of protecting against injustice.

Ultimately these reforms created a new thought to the criminal justice and procedures in other

common law jurisdictions, and this is the new norm of common law double jeopardy.

88 See Coffin, supra note 23, at pg. 805. 89 Richard L. Lippke, “The Case for Reasoned Criminal Trial Verdicts” (2009) 22 Can JL & Juris 313-330 at para. 16. 90 See Lincoln, supra note 15, at pg.12. 91 Ibid. 92 See Fitzpatrick, Supra note 47. 93 Ibid.

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IV. Do you come from a land down under?

The Double Jeopardy principle was derived and applied through the common law and

was also an import of the English throughout the British Empire legal systems. Its existence and

application has been essential to the operation of the criminal justice system in common law

countries. Throughout the existence and use of the common law legal system it has not been

uncommon for the commonwealth to adopt and adapt legal norms from other common law

jurisdictions. For a time, most colonial appeals would make their way to the English main land to

be heard by the Privy Council or the House of Lords. So it should not come as a surprise that the

New Double Jeopardy laws developed in the United Kingdom, sparked similar reforms in

Australia. The formula and conditions were very similar publically in Australia to allow this type

of reform discussion to emerge.

Mirrored reforms are not uncommon, and the beauty of the common law is in the

similarities. States tend to align, and adapt rules that succeed within the framework of their own

common law legal rules. Following the introduction of the CJA in the UK, Australian law

confronted the same issue regarding relaxation to double jeopardy protection, so the guilty

should not be able to escape punishment for a serious crime94

. The Australian legal system has

double jeopardy protection for an accused embedded in their justice system; however double

jeopardy lacks the force in Australia of a fully formed constitutional right95

or national legal

protection. Unlike Canada and the United Kingdom where criminal law is governed by the

national government; the criminal law is created and implemented by the regional states of

Australia and because of this difference in governance, the reforms to double jeopardy have

taken place in some, but not all of the states of Australia.

94 Michelle Edgely, “Truth or Justice? Double Jeopardy Reforms for Queensland: Rights in Jeopardy” (2007) 7:1

QUTLJJ 108, at 109. 95 Ibid, at 111.

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As in the case of the United Kingdom, the public outcry from the outcome of R v

Carroll96

induced the revision of the double jeopardy rule97

. Following an acquittal of murder

charges in the 1980’s, evidence taken at the time was re-examined years later with new

technologies to better analyze crime scene evidence. The Australian public believed the decision

to be an injustice at the time of the original trial, and the subsequent trail for perjury (even

though double jeopardy rules were meant to protect the accused) was issued to make up for the

original decision because such injustices should not benefit from such protections. The

Australian justices presiding over the Carroll case believed that making an exception to the

double jeopardy protection based on new evidence lacked cogency and would deprive the double

jeopardy rule of much of its content98

.

Even though Double Jeopardy is not a constitutional protection, affording it the same

overruling process as normal legislation, the Carroll court was not in a position to overrule the

age old maxim. Rather public pressure helped the theory into fruition. Significant shifts in

political attitudes and practices ripple through the legal system requiring refinements in some

areas and basic rethinking of others99

. In general the prosecution has no right of appeal against an

acquittal on indictment, and can appeal against a dismissal of a charge to the Supreme Court100

.

A special exception to double jeopardy would have to come from ordinary legislation. In R v

JS101

the Australian Court of Appeal ruled that verdict finality was not protected by the

constitution of Australia, making double jeopardy limited to the rules of legislative reform.

96 R v Carroll [2002] HCA 55 (Austl). [hereinafter Carroll] 97 Kelly Burton, “Reform of the double jeopardy rule on the basis of fresh and compelling evidence in New South

Wales and Queensland” (2004) 11:5 JCULR 84. 98 Ibid. 99 David Weisbrot, “The historical necessity of law reform” (2006) 9:2 FJLR 129. 100 U.K., Law Commission of the United Kingdom, Double Jeopardy: A consultation paper (Law Commission

Consultation paper No 156, 1999), at 111. 101 R v J.S. (2007) 230 FLR 275 (Austl).

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Considerations for reform transpired through research and briefing papers to help the

respective state governments understand the limitations of the current protections and how to

work around the existing rules. Reforms would have to be carried out through the respective state

legislatures. Most of the consultations agreed with the creation and adoption of the new evidence

exception (similar to the UK) as a fair public interest exception to overrule previous acquittals in

the interest of preserving justice. Rather than the state governments reforming as a means of

crime control like the UK labour party, the Australian reforms came about through public

pressure.

The older English double jeopardy rule is embedded in s.17 of the Criminal Code

1889102

and in s.156 of the Criminal Procedures Act 1986 (NSW)103

. Newly discovered evidence

is not admissible to rebut a plea of autrefois acquit or autrefois convict: the distinction is clear

between a new fact and an undiscovered fact104

. Creating exceptions to these would have to be

crafted carefully not to be so broad that it might encompass other or all types of offences. What

is important to note is that the Australian legal system has an abuse of process defense105

, which

can be pleaded when the Crown is essentially harassing the accused/acquitted. The

recommendations from the UK were used as a basis, but there was hesitation to adopt such rules

as Crown appeals seen in Part 9 of the CJA, and inclusion of all types of violent crimes to the

double jeopardy exception.

The New South Wales106

government adopted reforms, which were modeled on the

Criminal Justice Bill introduced by the Blair government in the United Kingdom in 2002107

. The

102 Criminal Code 1889 (Qld.). 103 Criminal Procedures Act 1986 (N.S.W.), s 156, See especially Kelly Burton, “Reform of the double jeopardy

rule on the basis of fresh and compelling evidence in New South Wales and Queensland” (2004) 11:5 JCULR 84. 104 Ian Parsonage, “Issue Estoppel, Perjury and Criminal Procedure” (1977) 8 Syd LR 505, at 515. 105 **Note: The defense was used to dismiss the second case against Carroll 106 Hereinafter “NSW”

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NSW bill would create a new and compelling evidence exception to double jeopardy for murder,

manslaughter or any offences carrying life imprisonment108

. It was believed that there is a public

interest in ensuring that criminals are convicted or the offences they commit109

. Consequently it

encourages the efficient operation of the criminal justice system and efficient use of community

resources because the same cases are not repeatedly brought before the courts110

. Rather only the

most serious offences can be brought to justice.

In 2006 the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006(NSW)

was passed111

which dealt specifically with amending double jeopardy protections. The adoption

of the CJA exceptions by the NSW government after extensive debate was limited to serious

violent offences112

; not all violent offences like in England. But all the procedural safeguards

(such as permission of the DPP to reopen a case and only one retrial) were drafted word for word

into the Australian State legislation. This change to the original exceptions illustrates how

controversial they were in the first place, and limiting it to serious violent offences seemed to

best serve the citizens of New South Wales.

The end result of the legislation was to correct previous injustices, and it included the

new and compelling evidence as the standard for which the DPP could petition to reopen a case.

The council for Australian Governments consultation papers we’re heavily favoring the CJA

proposals. However the impetus for reform was home stemming from the community disgust and

media campaign generated in the after math of the Carroll113

verdict. In creating their own form

107 Rowen Johns, Commonwealth (Austl.), Double Jeopardy, NSW Parliamentary Library Research Service,

Briefing Paper No 16/03 (2003) at pg. 9. 108 Ibid, at 9. 109 See Burton, supra note 97. 110 Ibid. 111 See Edgely, supra note 14, at 130. 112 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (N.S.W), s 100(3). 113 Vicki Waye & Paul Marcus, “Australia and the United States: Two common criminal justice systems

uncommonly at odds, Part 2” (2010) 18:2 Tul J In’t & Comp L 335, at 357.

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of corrective justice, the legislation was to first allow the law to catch up with advances in

forensic science114

by creating the new compelling evidence standard. The second exception

created applies to specific offences involving a maximum sentence of 25 years or more, where an

acquittal is tainted because of the commission of an administration of justice offence115

.

This Australian state example illustrates the issues with reforming the fundamental rules

of the criminal justice system. Even though the Council of Australian Governments116

recommended uniform changes to their double jeopardy laws in relation to the CJA, it did not

mean the people believed in such overarching reforms. The primary evils associated with

multiple prosecutions; in particular the dangers associated with the government previewing

defense strategy and potential infringement on jury verdicts, are not present when the accused

has already been convicted117

. By strictly limiting the exception to types of evidence and to

specific types of crimes helps balance the interest of the justice system.

The exception rule to double jeopardy was also adopted in the state of Queensland.

Following the above mentioned consultation recommendations; the Queensland government

drafted legislation to allow a reinvestigation and subsequent retrial request as per the English

counterpart. The Queensland rule however was a variation to both the UK and NSW. The

Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld) amended the state’s criminal code

allowing two exceptions to the double jeopardy protection. The first being a tainted acquittal

exception118

(applying to offences carrying 25 year sentences) and the second dealing with new

evidence119

. The Queensland variation limited the application of the evidence exception to

114 See Burton, supra note 97, at 6. 115 See Edgely, supra note 14, at 109. 116 Hereinafter “COAG” 117 Carissa Byrne Hessick & F. Andrew Hessick, “Double Jeopardy as a limit on punishment” (2012) 97:1 Cornell L

Rev 45, at pg. 61. 118 Criminal Code (Double Jeopardy) Amendment Act 2007(Qld), s 678(c). 119 Criminal Code (Double Jeopardy) Amendment Act 2007(Qld), s 678(b).

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murder only. It did not broaden the scope by allowing violent crimes; rather it applied to the one

type of criminal charge.

The state of South Australia followed in 2008 passing the Criminal Law Consolidation

(Double Jeopardy) Amendment Act 2008 (S.A.), which created a compelling evidence

exception120

to the crimes of homicide, violent crimes, and drug charges121

. Variations to the

exception are based on the legislature’s intention to utilize such exceptions to make the criminal

justice system efficient and still keep it fair and balanced. The state of Western Australia recently

amended their criminal code as well, adding the Criminal Appeals (Double Jeopardy) Bill 2011.

This variation of the double jeopardy rule specifically applies to “serious crimes” in the state.

The bill defines122

the crimes to offences that carry a 14 year or more imprisonment123

. All four

criminal code amendments attempt to address the issues that the UK exception illustrated.

However the differences in the types of crimes it applies to shows the hesitation and controversy

with such a rule being used to overrule an acquittal. While each doctrine aims to prevent

inconsistent verdicts and to preserve finality, they are slightly different in purpose124

.

Double Jeopardy lacks the force in Australia of a fully formed constitutional right, and a

cautious approach should be taken when whittling away at a long-evolved process protection125

.

Interestingly, both the Australia Capital territory and the state of Victoria have adopted human

rights charters, and reserved their position in relation to the council’s determination126

of reform.

It still seems troubling to these two influential states in Australia to be changing the rules to

120 Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (S.A.), s 332(1). 121 Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (S.A.), s 331(1). 122 Austl., Commonwealth, Law institute of Victoria, Policy: Double Jeopardy (Criminal Law Taskforce Report) (Melbourne : Law institute of Victoria, 2010). 123 Criminal Appeals (Double Jeopardy) Bill 2011 (W.A.), s 46A(1). 124 See Waye & Marcus, supra note 113, at 354. 125 See Edgely, supra note 14, at 111. 126 See Waye & Marcus, supra note 113, at 358.

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better serve the criminal justice system. Even though we have seen variations of the rule, the

mere idea of creating an exception seems to be against a right to the people of these two regions.

However in late 2011, the state of Victoria passed a double jeopardy exception statue127

.

This was in response to pressure from surrounding state legislatures and public pressure within

the state of Victoria. The passing of this exception would allow the police force to immediately

apply to the Court of Appeal with permission of the DPP to address the acquittals of three men

responsible for the Walsh Street murders128

. The case involved two police officers being killed

and the alleged persons responsible were acquitted due to lack of evidence. The Victoria act

created a fresh and compelling evidence exception129

, a tainted acquittals exception130

and

administration of justice offences131

. The exceptions apply to a wide range of serious and violent

crimes132

and provide adequate procedural safeguards similar to all the surrounding Australian

states for an accused. Victoria’s adoption of the exceptions was done in light of its rights

charters, providing justification of this exception as fair with the existing procedural safeguards

drafted into the legislation.

The new legislations adopted by the Australian states still leave the procedural safeguards

in place for the protection of a re-accused. It is not a simple application process to quash and

acquittal; rather the legislation creates thresholds to be met to achieve their end goal.

Furthermore, the defense of “abuse of process” is still vital to the criminal justice model in

Australia. Ultimately, after the Australian DPP decides on a reinvestigation, the permission of

Court of Appeal justices still needs to occur for the acquittal to be quashed, identical to the

127 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.). 128 Geoff Wilkinson. (2011, Nov 08) New Laws a second chance to prosecute constables’ murders, Herald Sun,

online: <http://www.heraldsun.com.au/news/victoria/new-laws-a-second-chance-to-prosecute-constables-murders/story-fn7x8me2-1226188138574>, (accessed on July 11th, 2012). 129 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.), s.327C. 130 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.), s.327B. 131 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.), s.327. 132 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.), s.327M(2).

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procedure in England. Many commentators believe that freedom from state harassment can

plausibly be portrayed as the defining characteristic of autonomy133

, regardless of all the checks

the mere existence of the rule goes against a person’s right to freedom.

The limitation brought about by the evidence exception is crafted in such a manner that

does not compensate for investigative fault or discovery at the time of the original investigation.

Rather, the exception defines fresh as “was not” adduced in the proceeding in which the person

was acquitted134

, leaving only undiscoverable evidence, or technological impossibilities to be

rectified after the trial. As per the UK legislation, it leaves the Australian legislation to be applied

retrospectively. Because of the newness standard for evidence to be present for the new law to be

applicable, the Carroll case, which in part generated the reforms, may not of itself qualify for a

retrial under the exception135

. The major piece of evidence relied on by the DPP was discovered

and used during the first trial, even though it couldn’t be analyzed correctly.

The promotion of these reforms has been closely tied to technological advance in

criminal investigation, such as DNA profiling136

, and this form of corrective justice is applied to

close down the investigative “handicap” that existed in past decades because of technology

limitations. Because the legislation requires that the new evidence essentially proves guilt (not

just reasonable doubt) for the crime acquitted, there does not seem to be a strong reliance to any

other types of evidence than DNA to reach this legal standard. In the Australian case of

Rogers137

, a confession was made regarding a robbery charge, but was later deemed inadmissible

because of criminal issue estoppel, which was because of a resolution in a subsequent case. The

reliance on this type of evidence is difficult to meet the threshold of fresh and compelling. The

133 See Edgely, supra note 14, at 125. 134 See Burton, supra note 97, at 13. 135 See Waye & Marcus, supra note 113, at 359. 136 Ibid. 137 R v Rogers (1994), 181 CLR 251 (Austl.).

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reliability or even applicability of issue estoppel principles could present difficulties for the

crown in using the double jeopardy exception. Public interest in finality is undoubtedly

important138

, but it seems that DNA is the only compelling standard to meet this exception. The

four state legislations also require a public interest element to be determined by the Court of

Appeal, and does not seem compelling or in the interest of the community to squash an acquittal

because of a confession or statement.

DNA evidence is also not to be portrayed as the perfect standard for evidence. The term

compelling is stringently defined as reliable and substantial139

, however there have been

examples of cases in Queensland and NSW where DNA evidence has been bungled140

. Samples

can be stored for long periods of time in different places, passing the sample though several

hands before the DNA analysis are finalized141

. Juries have difficulties reconciling conflicting

interpretations of the evidence142

, and this will add to the already prejudicial effect present with a

retrial of quashed acquittal. If the Australian justice system is attempting to provide finality and

justice, having such a vague standard stacks the deck against someone who falls into this

exception. If the goal of the legislation is to provide fairness, how “fair” does this sound?

One of the traditional rationales for double jeopardy rule is that it decreases the risk of

wrongful conviction of the innocent, and the reforms would not undermine this procedural

value143

. DNA evidence has been used to convict people of offences as well as overturn

convictions144

like in the Australian court of appeal case Burton145

. It is difficult to see a

138 See Edgely, supra note 14, at 122. 139 See Burton, supra note 97, at 15 (AustLll.) 140 Ibid, at 15. 141 Ibid, at 15. 142 Ibid, at 15. 143 Charles Parkinson, “Double Jeopardy Reform: The New Evidence exception for Acquittals” (2003) 26:3 UNSW

LawJI 603, at 611. 144 See Burton, supra note 97, at 15. 145 R v Burton [2001] QCA 133, (Austl).

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justification in using this exception in the way Australian legislators have drafted it. The UK

reforms place heave emphasis on DNA being the standard for new and compelling evidence, and

the Australian adaptation does the same. Disconnect seems to lie in its design as a retrospective

rule. Its procedural flaw seems to fall with its application and legal standard needed to be met. If

the legislative design was to catch up with present time, then why the two stage limit set on

admissibility? The nature of the criminal adjudication system is based off a human system and

therefore fallible146

. The guilt is determined based on the exception, so it takes away the

proceeding and bypasses the trial. If this guilt is needed before hand, and DNA seems to be the

best possible evidence, it still leaves room for errors and wrongful convictions.

The Australian systems adoption and application of the new evidence exception

illustrates not only the issues with the UK model, but also the various states unsure application of

the rule. Because of the variations to the charges, the different state legislatures seem to have a

different understanding on what the UK reforms wanted to achieve, and how difficult it is to

bypass a criminal procedural safeguard. The reforms would be more important for its symbolic

significance (that the criminal law will not allow acquitted persons to escape justice where new

evidence of guilt emerges) than for its practical impact147

. Without a defined evidential standard,

the hesitation for fully adopting these standards would make sense because it gives the state

power to not only quash but set investigative standards. The same result can be achieved through

appeals mechanisms; instead of quashing orders and retrials. Throughout Australia there are only

three identified cases that would fit within the narrow legislative criteria for a retrial148

. The

beauty of the Australian reforms is the ability to repeal the legislation itself if the public interest

is not met through these changes to the criminal justice system.

146 See Parkinson, supra note 143, at 612 (AustLll). 147 Ibid. 148 Ibid.

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V. It’s as Scottish as golf

Tony Blair started a political and cultural revolution when he was elected into office

during the 1990’s. Not only was his government responsible for the drafting and passing of the

Criminal Justice Act, but also ushered in a time of political independence for the member nations

of the United Kingdom. As the double jeopardy exception was passed by the UK parliament, it

did not have applicability in Scotland. Due to the “devolution process” carried out by the Blair

government, the creation of the Scottish parliament also meant a degree of legal independence

from the Westminster parliament in London. Functions conferred on the Scottish Parliament and

Executive149

including, but not limited to: education, law, courts, prisons, judicial appointments,

economic development, agriculture, and local governments150

. Through various forms of

political agreements (or constitutional conventions), the UK parliament agreed to only pass laws

which were applicable to the Scottish people with consent of the Scottish parliament. This level

of autonomy was returned and respected by the English, and is the very reason that the CJA did

not apply within the Scottish territory.

After the passing and implementation of the UK exception in 2006, the Scottish

government undertook a consultation process review of the “Scots Law”, to see if such

exceptions were needed in Scotland. The commission of the consultation paper was not only in

relation to the reforms that too place in UK law, but was also because of the dismissal of the

“Worlds End Murder” case. The Sinclair151

case (which is the formal case distinction) was

dismissed because of lack of evidence, causing public outrage. The Scottish public believed that

149 Scotland Act 1998 (U.K.), c 46. 150 Peter Leyland, The Constitution of the United Kingdom: A contextual Analysis (Portland, Oregon: Hart

Publishing, 2007), at 189. 151 Sinclair v HMA [2007] HCJAC 27 (Scot).

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the families of Helen Scott and Christine Eadie deserved justice, and Sinclair was acquitted

unfairly.

As with England and Australia, the shift towards creating an exception to double

jeopardy was with a highly public case which got the public involved with the criminal justice

process. Regardless of the end goal of the governments, the court of public opinion had a heavy

influence in the reform process. With devolution, the Scottish parliament still wanted the ability

to make laws for the people instead of just following the UK model. With the creation of the

Scottish exception through the Sinclair case, the law was home grown or self-generated152

instead of compliance to the Criminal Justice Act.

The Scottish law commissioned outlined its findings in 2009, and stated that even though

the double jeopardy maxim is a fundamental recognition of the importance of an individual in

relation to the executive arm of government153

, but any application for a retrial should be subject

to consideration by the appeal court of the likelihood that the new evidence would substantially

improve the chances of a conviction154

. The report also outlined the two exceptions that were

adopted in the other common law jurisdictions of tainted acquittals and new evidence.

The Commission and government did not consider further abolition of double

jeopardy155

. Simple legislation enacted could amend the current protection with the intention for

an exception to apply to specific circumstances. The calibration of the evidence standard was of

concern to the law commission. It illustrated the issue with statements of confession, claiming

that not all confessions or admissions are credible, and safeguards would no doubt be necessary

152 See Leyland, supra note 150, at 191. 153 U.K., Scottish Law Commission, Discussion paper on double jeopardy (Discussion paper No. 141) (Edinburgh:

The Stationery Office, 2009), at 2.34 – pg.13. 154 Ibid, at para 7.54 , pg.83. 155 Ibid, at para 7.4, pg.72.

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to ensure that the statements were properly established and true156

. The exception might well

cover evidence that emerged as a result of scientific discovery, such as DNA in recent years or

fingerprint evidence in the past157

. Any general exception to the rule on the basis of new

evidence would devalue the concept of finality which is reflected in the pleas of res judicata158

.

In 2011, the Scottish parliament passed the Double Jeopardy Act159

, which created the

two exceptions of new and compelling evidence exception and tainted acquittals exception.

There did not seem to be much concern again with the tainted acquittal exception because it was

seen as an extension of courts powers in the trial process. The new evidence exception was a

Scottish variation of the UK legislation. Under the act, an acquittal may be set aside for new

evidence160

of the same offence or any subsequent offence. This variation does not set out

limitations as seen in the other jurisdictions. The standard for evidence is also left to judicial

interpretation, only leaving the wording “new and compelling” as the standard. As the law

commission stated, through examples in England, it concluded that scientific evidence may be

the only type that meet the requirements of s.4 of the act.

This legal variation leaves the types of retrials open to any offence, and an acquitted

defendant should not have to live as a virtual prisoner161

. While attempting to match the English

counterpart and unify the law of double jeopardy exceptions in the UK, the Scots law created an

open standard, almost abolishing the protection, essentially going against the recommendations

of the commission to limit the exception to more serious categories of offences162

. The

legislation also eliminated the public interest standard and created a more confined interest of

156 Ibid, at para 7.28 , pg.78. 157 Ibid, at para 7.47, pg.81. 158Ibid, at para 7.32 , pg.78. 159 Scotland Act 1998 (U.K.), c 46. 160 Scotland Act 1998 (U.K.), c 46, s (4), ss (3)(a). 161 Kevin Jon Heller, “What happens to the acquitted? (2008) 21 LJIL 663, at 678. 162 U.K., Scottish Law Commission, Discussion paper on double jeopardy (Discussion paper No. 141) (Edinburgh:

The Stationery Office, 2009), at para 7.43, pg.80.

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justice standard163

. The legislation seemingly signals the high court to only quash acquittals

when the previous decision was a miscarriage of justice and the evidence points to guilt of the

accused.

163 Scotland Act 1998 (U.K.), c 46, s (4), ss (7)(d).

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VI. The Kiwi’s take a stand, without doing the Haka

New Zealand also underwent a reform process to their criminal justice system around the

same time as England and Australia. Oddly all the reforms followed the same sequence of

events. In 1999 following the Moore164

case, the New Zealand law commission ordered a

consultation on the current state of double jeopardy and if a possible exception could be created.

It was done in light of the findings brought out in the UK, and began a long process that

culminated in the creation and acceptance165

of the double jeopardy exception.

Moore was charged with murder in the early 1990’s, and was acquitted of all counts.

Conversely, Moore was prosecuted on charges of perjury and interfering with the administration

of justice in 1999, for statements made during the original murder trial. The statements that were

brought to light in 1999 put his acquittal for murder into question. Following the case, the law

commission published a discussion paper outlining not only some of the findings of the English

law commission, but a practical summary of the legal issues brought about by the case166

. The

judgment made reference to Moore being acquitted of murder and the goal of the law

commission was to prevent this from happening again. The commission addressed the issues

with double jeopardy and how people should be not be subject to multiple prosecutions, however

rebutted the idea with the fact that an accused can reasonably expect to be subjected to the

criminal prosecution system only once for an offence, provided he or she has not deliberately

perverted the first process167

.

164 R v Moore [1999] 3 NZLR 385 (N.Z.). [hereinafter Moore] 165 Criminal Procedures Act 2011 (N.Z.) 2011/81. 166 N.Z, Commonwealth, Law Commission of New Zealand, Acquittal following prevention of the course of justice:

a response to R v Moore (New Zealand Law Commission Discussion Paper: Preliminary Paper No. 42, 2000). 167 Ibid, at pg.7.

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A follow-up New Zealand law commission report however urged the government not to

abandon the double jeopardy protection for the new English exceptions168

. The New Zealand Bill

of Rights169

protects individuals from multiple prosecutions, and the law commission illustrated

that their commitment to these rights, which are also a reflection of the government’s

commitment to the UN human rights committee. However the committee does make reference

that a case can be reopened if it is justified by exceptional circumstances170

. The commission

wanted to limit the exception to the most serious types of crimes of their society; such as

homicide and violent crimes171

.

The recommendations listed the two exceptions created by the English legislation, being

evidence and interference with the administration of justice. This variation of the double

jeopardy principle makes both exceptions the qualifying factors however for the exception to

apply, under the final wording of the Criminal Procedures Act; it defines the evidence exception

to apply to acquittals172

. Nevertheless, the Act defines a person acquitted as someone who has

been charged with a breach of administration of justice173

after the first charge was dismissed.

The New Zealand law commission attempted to address the breach of the administration of

justice, and believed that for a retrial to occur on the original charge, the accused must be found

guilty of the administration of justice charge174

, thus proving the original acquittal to be incorrect

and bypassing the Bill of rights175

clause.

168 N.Z., Commonwealth, Law Commission of New Zealand, Acquittal following prevention of the course of justice

(New Zealand Law Commission Report No. 70, 2001). 169 New Zealand Bill of Rights 1990, (N.Z.), 1990/109, s 26. 170 N.Z., Commonwealth, Law Commission of New Zealand, Acquittal following prevention of the course of justice

(New Zealand Law Commission Report No. 70, 2001), at para 9, pg. 4. 171 Ibid, at para 39, pg. 15. 172 Criminal Procedures Act 2011 (N.Z.) 2011/81, s 154. 173 Criminal Procedures Act 2011 (N.Z.) 2011/81, s 151(1). 174 Ibid, at para 44, pg. 16. 175 New Zealand Bill of Rights 1990, (N.Z.), 1990/109, s 26 (2).

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It specifically focused the exception to apply to violent cases, yet allowed the general

application of the double jeopardy principle to be applicable without compromising the integrity

of the original acquittal. It uses the bypass to prove that the original acquittal was a breach and in

doing so does not undermine the criminal justice system. Without the protection against

harassing successive prosecutions, all other criminal procedural guarantees become meaningless,

and given a sufficient number of attempts the government will always prevail176

. The procedural

safeguards exists identical to the English model, empowering the High Court of New Zealand to

judge the new evidence on its merits and to see if reopening a trial is in the best interest of

justice.

The drafting of this new evidence and administration of justice exception was carried out

in 2004 under a revised Criminal Procedure Act177

. However the act was not passed until 2011.

The one important clause of the New Zealand exception is its restrictions to past acquittals.

Because of the Bill of Rights restrictions listed above, the double jeopardy exception was limited

to offences after 2008178

. This seems to be a very creative legal way to not only bypass the

double jeopardy protections, but to also uphold them as a right. Unfortunately for this legislation

it is inapplicable to the Moore case. Statute of limitations bars any form of corrective justice.

The wording in s.154 also does not define what the court would consider as new and

compelling. It is a relatively new statue so the application has been limited so far, and only time

will tell how useful this will be for the New Zealand criminal justice system. New Zealand

society has codified their double jeopardy protections in a quasi-constitutional Bill of Rights.

This signifies their commitment to upholding the sanctity of the justice process and verdicts.

Legislators will continue to enact more and tougher anticrime measures and those accused of

176 Susan R Klein, “Double Jeopardy’s Demise” (2000) 88:3 CLR 1001, at 1050. 177 Criminal Procedures Bill (N.Z), 2004/158-2. 178 Criminal Procedures Act 2011 (N.Z.) 2011/81, s 151(6).

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crimes will continue to constitute a politically powerless and disfavored group179

without defined

procedural protections. This variation should be used as an example illustrating a solution in

finding a balance of respecting declared rights versus enacting laws for the better operation of

criminal justice protections.

179 See Klein, supra note 176, at 1049.

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VII. Is there a storm coming Mr. Trudeau?

Double Jeopardy is a complex procedural protection, and has been forged to protect

citizens of Canada. Following the reforms of the other common law jurisdictions, it would be

important to evaluate if such an over haul is needed within Canada. The simple answer to reform

would be to amend the constitution removing the protection from s.11 (h) of the Charter of

Rights. Canadian law guarantees this protection to all, and it is a legal procedural right to anyone

within the borders of Canada. To amend the constitution and remove the protection, the general

amending formula under s.38180

must be used. Amendments to the Canadian Constitution must

be ratified by resolution of both houses of the federal parliament and the legislatures of at least

seven provinces containing at least 50 percent of the population181

. Two attempts at major

amendments to the Canadian constitution in the 1980’s, failed because of the amendment

procedures. The Charlottetown and Meech Lake constitutional conference were public rejections

of amendments and illustrated the Canadian public’s distaste for mega constitutional politics182

and amending their given rights.

Any type of reform to double jeopardy in Canada would need a public element. Charter

rights are given as rights of the people and require the government to respect them at all costs.

Public backing would need to be paramount and pressing for such constitutional changes to even

be considered. The four common law jurisdictions looked at in the previous sections all had one

common factor fueling their reforms; public involvement and understanding. Law reform does

occur when the public is to a degree not happy with the current state of the system. Drastic or

swift change usually comes from the outcome of a legal case that gains the attention and is seen

180 Canadian Charter of Rights and Freedoms, s 38, Part I of the Constitution Act, 1982, being Schedule B to the

Canada Act 1982 (U.K.), 1982, c 11. 181 See Archer, supra note 39, at pg. 104. 182 Ibid, at pg. 115.

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as a pressing issue in the public eye. This becomes especially tricky when the reforms need to be

for rights entrenched in a constitution.

Canadian law does not have that “one case” which has generated media scrutiny and

could get the public behind reforms to the double jeopardy rule. The need for that one case can

get the issue the attention nationally, which could start a debate. Unfortunately that has not

happened, nor does there seem to be any cases currently which have the potential of doing this.

Charter cases that gain public attention for reform are rare. The most notable case in the Charter

era which fueled constitutional rights reform came from the Rodriguez183

case. The decisions

controversial nature did spark questions around the limitations of s.7184

of the Charter, and a

need to either expand the understanding of the right, or even amend it. However, since the

rendering of the decision in 1993, the debate surrounding this case left the public spotlight

without the desired resolution. This subject was rehashed almost twenty years later in the 2012

British Columbia case of Carter185

, gaining public and political attention to the issues with s.7.

For any reform of s.11 (h), there would need to be court cases that veer the public eye onto the

topic, and illustrate the issue with the double jeopardy protection, and why the Canadian model

would need to mimic the other common law jurisdictions.

Putting aside the constitutional issues186

and looking at the double jeopardy protection as

a criminal procedural protection, any reform of this would need to determine if the Canadian

criminal justice system is really in need of a retroactive removal of double jeopardy protection,

and replacing it with a variation of the UK exception. If Canada would create a variation to the

United Kingdom’s Criminal Justice Act, it would then place the power to review decisions in the

183 Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 579. 184 Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the

Canada Act 1982 (U.K.), 1982, c 11. 185 Carter v Canada (Attorney General), (2012) BCSC 886. 186 **Note: This would be the case if there was not a protection to double jeopardy in the constitution

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hands of the provincial Crowns, and the final decisions to reverse decisions to the Courts of

appeal. This essentially would delegate more powers of prosecution to the government. From

arrest to investigation, to the trial, and then possibly a retrial; it might seem to an accused that the

government could have unfettered amounts of procedural powers to prosecute. The individuals’

interests rather than the sovereign’s should be considered when determining the circumstances

under which successive prosecutions may occur187

. Upon receiving new and compelling

evidence, the Attorney General would apply to the court of Appeal to reinvestigate a case, thus

getting a second chance at their desired verdict. What is troubling about this would be the attack

on a person due process rights (or what is commonly known as their day in court), because by

giving defendants/accused due process rights, serves as a vital safeguard against the unjustified

curtailment of their moral rights188

. Breaching this right by subjecting an individual to a follow

up trial or multiple trials; steers away from the notion of “their one day in court”. The idea of

investigating and laying charges is nothing foreign to the job of Crown counsel, however the

troubling aspect of allowing an exception to double jeopardy in Canada would be going against

the sanctity of a verdict, and allowing multiple investigations or trials.

This change to the understanding of the rule evolved from the ideas of different legal

jurisprudence, and transplanting the idea is not as simple as it was when adapting the original

double jeopardy protection from the common law. As a matter of fundamental policy in the

administration of the criminal law it must be accepted by the crown in a subsequent criminal

proceeding that an acquittal is the equivalent to a finding of innocence189

. This ideal was

modernized and upheld by the ruling in Connelly, and this change and evolution started from the

187 Robert Matz, “Dual Sovereignty and the double jeopardy clause: if at first you don’t convict, try, try, again”

(1996) 24:2 Fordham Urb. LJ 353, at pg. 372. 188 Richard L. Lippke, “The case for reasoned criminal trial verdicts” (2009) 222 Can. JL & Juris 313, at para. 16. 189 Martin Friedland, Double Jeopardy, (Oxford: Clarendon Press, 1969), at pg.129.

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British. The error in English law was introduced in 1964 (in Connolly) not with the 2003

Criminal Justice Act190

by allowing the courts to define and stretch the understanding of criminal

procedural protections. In considering the contemporary meaning of double jeopardy, many

courts have claimed that changing times cannot affect the original protection against double

jeopardy, whose contours are the product of history191

. Due to pre-existing Charter limits, the

only logical course of action would be to expand the rule.

One of the general principles of the Charter is that it is a living tree, which must be

allowed to grow and develop in ways that its drafters could not foresee192

. However as a

guaranteed right, it is difficult to evolve double jeopardy in Canada to meet evolutions in society

and legal jurisprudence. The Charter is a direct illustration of the values of Canadian society, and

regardless if other common law jurisdictions question the relevance of this procedural protection,

Canadians believe the double jeopardy clause actually does provide such protections193

. For this

to evolve and develop to allow an exception allowing multiple trials and prosecutions does not

seem to be something that the original drafters of the Charter would have wanted to expand to

allow.

The UK transition was fueled by societal values and public pressure that does not seem to

exist in Canada that can easily translate to Canadian values. It seems problematic from a

Canadian perspective to allow the legislature to deprive defendants of any protection from

successive prosecution194

. The ever changing UK values are many, and collectively contribute to

the change in their legal approach to double jeopardy. But it must be added that legislatures

190 G.J. McAleer, To Kill Another: Homicide and Natural Justice (New Brunswick, NJ: Transaction Publishers,

2010) at pg. 71. 191 See Sigler, supra note 42, at pg. 1. 192 See Archer, supra note 39, at pg. 155. 193 Carissa Byrne Hessick & F. Andrew Hessick, “Double Jeopardy as a limit on punishment” (2012) 97:1 Cornell L

Rev 45, at pg. 58. 194 Anne Bowen Poulin, “Double Jeopardy Protection from successive prosecution: A proposed approach” (2003) 92

Geo LJ 1185, at pg.1226.

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exercise little self-restraint, adding statutory provisions targeting conduct that is either criminal

or prohibited and creating overlapping195

offences, so any type of protection or ban can only

make the criminal justice process stronger. The Canadian protections did evolve from common

law principles that were created from UK common law principles. The reason that this impasse

exists between the two is the differences in interpreting double jeopardy as a procedural

protection versus it being a procedural right of an accused. Canada and the United States

recognize double jeopardy as a right, where others believe it to be a procedural and not a

substantive protection196

. Taking away a valued right in Canada would be difficult, because the

public is not interesting in giving up rights to the government.

This policy unfortunately has more long term implications, rather than something that is

case by case. The primary policy issue revolves around the decision whether the community is

well served by a restriction upon the prosecutor’s power to initiate and pursue the prosecution of

criminal suspects197

or to allow them the ability to go back and reintroduce proceedings. The

number of modern crimes far exceeds that at the time the rule was created, and the crimes are

now defined by the legislature198

, so how can the legislature define how many times it can charge

you for all the crimes they have created? The Charter protection limits the legislature’s ability to

impede on a person’s autonomy, thus finding a balance between the protection of the public and

the protection of one’s self rights in that society.

The changes around the world subscribed to the notion that a double jeopardy exception

was needed to balance victims’ rights, and not let people get away with crimes. The English

governments “tough on crime” approach helped usher in reforms to double jeopardy and other

195 Ibid, at pg. 1188. 196 George C. Thomas III, Double Jeoaprdy: the history, the law (New York: New York University Press, 1998) at

pg. 47. 197 See Sigler, supra note 42, at pg. 155. 198 See Poulin, supra note 194, at pg.1199.

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areas of criminal procedure, to make the system look tougher, and to better serve the needs of

their society. There is no doubt that government reports and empirical evidence was used to

convince the public and legislature that because of increased crime rates and acquittals, some

tougher procedural safeguards were needed. On the merits, the idea of bringing closure to

victims is an admirable cause, however given the fact that the committees who produced the

reports outlining the need for double jeopardy reform admitted that the exception would be used

in very limited circumstances199

, makes quick adoption of such an exception in Canada highly

unlikely. The “tough on crime” wave that really helped create a public acceptance of the

exception around the world would be difficult for Canada in the present time period with reports

issued from Statistics Canada200

that the reported crime rate in Canada has been on a decline

since 1991201

, and violent crimes have also been in decline since 2006202

. Attempting to reform

the criminal procedure rules to make them more victims oriented as opposed to protecting an

accused would be difficult to do so when crime rates are declining across the country.

With declining rates, it would also be difficult to create reforms allowing prosecutors

multiple attempts to convict. Independent of any sentence imposed, the second trial represents a

separate and discrete burden on the defendant and an opportunity for the prosecution to improve

its position in relation either to conviction or to sentencing203

. Ultimately adopting the exception

against the rights within the Charter, would illustrate that a person’s liberty mean nothing in the

199 Robyn Lincoln, “Should the double jeopardy rule be in jeopardy?” National Legal Eagle (2003, Vol 9, Issue 2,

Article 5) at pg.12, online: The National Legal Eagle

<http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1066&context=nle>. 200 Statistics Canada, 2012. “Police Reported Crime Statistics, 2011.” The Daily, July 24. Statistics Canada

Catalogue no. 85-002-XIE. p. 1, Table 252-0051. <http://www.statcan.gc.ca/daily-quotidien/120724/dq120724b-

eng.pdf> (accessed July 27th, 2012). 201 **See APPENDIX A - Statistics Canada, 2012. “Police Reported Crime Statistics, 2011.” The Daily, July 24.

Statistics Canada Catalogue no. 85-002-XIE. p. 1, Table 252-0051. <http://www.statcan.gc.ca/daily-quotidien/120724/dq120724b-eng.pdf> (accessed July 27th, 2012). 202 **See APPENDIX B - Statistics Canada, 2012. “Police Reported Crime Statistics, 2011.” The Daily, July 24.

Statistics Canada Catalogue no. 85-002-XIE. p. 2, Table 252-0052. <http://www.statcan.gc.ca/daily-

quotidien/120724/dq120724b-eng.pdf> (accessed July 27th, 2012). 203 See Poulin, supra note 194, at pg.1209.

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face of a verdict. This also presents an issue with the importance of finality in the criminal justice

process. The wording of s.11 (h) requires a final decision for the protection to ban multiple trials

and punishments, and changing the meaning of final judgment in a Canadian context would then

dilute the protection, bringing uncertainty to what final really meant. Given that Charter

protections require some form of understanding before application, in the case of double

jeopardy, when you change the meaning of a final judgment, it would then allow different

scenarios of finality, thus making the Charter right difficult to enforce.

The variations to this rule attempted to create safeguards to allow the exception to be

applied without completely compromising values of the criminal justice system. Initiation of an

investigation and new trial, will put into question not only the finality of the original judgment,

but also could affect the investigation process and the fairness in the second trial. It is possible

that scrapping the double jeopardy protection may discourage investigative and prosecutorial

efficiency204

. Fairness and impartiality may suffer, making it difficult to secure impartial juries to

ensure fairness in a new proceeding when there has already been a dress rehearsal for the trial205

.

The presumption of innocence is also put into question because the new exception to double

jeopardy requires the new evidence to be able to convict the accused, going against the basis that

a person is innocent until proven guilty. Evidence presented in preliminary hearings only need to

meet the standard for which an issue exists, requiring a trial. Whereas, the new double jeopardy

exception requires an evidentiary standard which demonstrates that an accused is highly likely to

be convicted of the crime. The legal system values the ability of an accused to rebut the evidence

and charges against them, and double jeopardy would not have been codified in the Charter if we

as a society did not believe this.

204 See Lincoln, supra note 15, at pg.12. 205 Ibid.

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Given the burdens of the accused to go to trial, it makes it difficult to ignore or set aside,

because it directly attacks the basis of the criminal justice system in Canada. By barring

subsequent trials, the original investigation would need to be thorough enough to issue a charge

document with enough evidence for a trial. As stated in section two, the Crown may withdraw a

charge for multiple reasons, including insufficient evidence without jeopardy attaching, and this

alone could allow for a better investigative process. The state can build a case with proper

evidence against an accused. Reliance or even consideration of creating such an exception to

double jeopardy serves only the purpose of a retrial because the state did not have enough

evidence to convict.

The basis for creating the exception to double jeopardy is to make sure the guilty are

brought to justice. To do this it requires greater powers of the Crown and courts to review

previous decisions. This review process is not any different from an appeal, but what the UK

exception did was allow the court to overrule a decision based on new evidence that has surfaced

which is in the interest of justice. The court must address the actual proof and theory on which

the prosecutor will rely in the approaching trial and compare it with the charge in the first trial206

.

This is not so different from the Canadian criminal appeals process; however the inability to

review facts and even introduce new facts is certainly the basis of a judge and jury being a trier

of fact.

From a Canadian perspective, there does not seem to be much support for retroactive

application of such rules or even allowing such an exception to exist in the criminal procedural

rules. So one would have to wonder what the overarching purpose of the UK parliament in

allowing such an exception to be created? Given the vast amount of opinions, writing and

jurisprudence on the subject matter, it is difficult to ignore the possibility that double jeopardy in

206 See Poulin, supra note 194, at pg.1231.

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very limited and rare cases allows for a miscarriage of justice. Allowing such an exception would

thus allow the State to go back and correct the situation, regardless if it was a mistake on their

behalf or if evidence did not exist at the time. The UK parliament elevated retributory justice as a

systemic value at the expense of the erosion of the presumption of innocence and the rule against

double jeopardy207

. This corrective justice model does not have room in Canadian criminal law.

It is not in the countries values to compromise rights for complete accuracy of verdicts.

The corrective justice model created by the double jeopardy reforms gives the state a “re-

do” of charges. But the debate against this change illustrates many aspects that double jeopardy

attempts to protect in the justice process. The fear in allowing an exception will increase

wrongful convictions because of the evidence standard. The creation of this correction seems to

be compensating for improvements in police investigation techniques, and recent advancements

in forensic science that may provide the kind of new evidence that would warrant a case to be re-

tried208

. Based on the logic, allowing a retrial will correct the mistake and implement techniques

and technologies of today, towards cases and investigations of yesterday. One would concede

that the law, the criminal justice system, and its processes should be flexible and responsive to

social and cultural changes and therefore need to be continually updated and modernized209

. On

the other hand, double jeopardy exceptions seem to be situated towards the two exceptions: new

and compelling evidence and breach to the administration of justice. Allowing variations of the

two types of exceptions could provide the same types of protections that they provide in the other

common law jurisdictions, while still respecting the double jeopardy maxim, and Charter

protections.

207 See Coffin, supra note 23, at pg. 798. 208 See Lincoln, supra note 15, at pg.12. 209 Ibid.

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VIII. What can we learn from the (*)?

The acceptance of double jeopardy reform around the world attempted to create a

backdoor exception to allow retrials by integrating evidence and administration of justice

offences to lift the protections. Regardless of the block by the Charter for a subsequent trial,

principles from both of these exceptions could be used to help strengthen the criminal justice

process in Canada, without bypassing ones Charter protection.

1) New and compelling evidence exception

This reform is the cause of the controversy. It allows a review of fact and reinvestigation

that could bring about another trial. Not only is the evidence exception qualified with the

requirement that it be a new piece of evidence, but also it has to be compelling enough to bypass

the existing verdict to reopen and prosecute. For new evidence to be compelling it must initially

be both reliable and substantial210

.

As mentioned countless times this evidence standard was employed to make up the

technological gap by allowing DNA evidence to be analyzed and made admissible after the

original trial. The new evidence standard is primarily targeted at blood and tissue samples from

decades old trials that resulted in acquittals before DNA testing was available211

. Allowing DNA

evidence after the fact seems to be fueling the argument that the reforms are to correct the

mistakes. Public confidence in the administration of justice is fostered by demonstrating that

210 Justin W. Curtis, “The Meaning of Life (or Limb): an originalist proposal for double jeopardy reform” (2007) 41

U Rich L Rev 991, at pg. 1001. 211 Ibid, at pg. 1001.

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participants in the criminal justice system are willing to take action to prevent future

miscarriages of justice212

; not go back and correct a verdict because new evidence has surfaced.

If certain types of evidence are not available during the original trial, then on its surface

the trial was carried out according to the criminal justice practice, and was fair at the time. As

time progresses the integration of technology will strengthen investigations, but would not

necessarily make previous acquittals incorrect. By retroactively allowing the use of technology,

as much as it could help convict factually guilty people, it also runs the risk of convicting

factually innocent people as well.

It is a two sided argument protecting the victim versus protecting the accused, but

compromising a solid procedural right in Canada has little to no backing for implementation.

This is not to say that the merits of the double jeopardy reforms are not admirable; nevertheless,

from a wider policy perspective, it would then put into question all types of decisions, diluting

the judgments of the judiciary. The development of DNA technology has helped to further the

search for the truth by assisting police and prosecutions in the fight against crime213

. Using these

methods going forward is far more beneficial than attempting to apply it to the cases of the past.

A report commissioned by the department of justice outlined the use of DNA technology to be

one of the best enhancements to the criminal justice system which will not only generate more

accurate verdicts, but limit cases of wrongful convictions. Wrongful convictions are a serious

concern of the double jeopardy exception, and technology to achieve accurate information about

the accused will allow the justice process to function more smoothly. In Canada the wrongful

conviction cases of David Milgaard and Guy Paul Morin provide powerful examples of how

212 Canada, Department of Justice Canada, Report on the prevention of miscarriages of justice (Ottawa: FPT Heads

of Prosecutions Committee Working Group, 2004) (Chair: Rob Finlayson), online:

<http://www.justice.gc.ca/eng/dept-min/pub/pmj-pej/pmj-pej.pdf>, at pg. 2. 213 Ibid, at pg. 107.

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DNA evidence can be used to exonerate innocent people214

. Relying on such techniques is

exactly what the evolution of the law should address, and incorporation of DNA evidence

procedural practices will better serve the country in years to come.

The UK double jeopardy exception does elevate this type of evidence as a compelling

factor to trigger the exception, but in the case of Canada, as great as retroactive application of the

rule may seem, in reality DNA evidence constitutes circumstantial evidence215

; making the

decision to re-prosecute, difficult to justify. Using this technique from now on, and making

investigators aware of the benefits, couple with existing crown practices for initiating an

indictment will serve the same purpose. Without the need to go back and prosecute individuals

acquitted in the past in Canada, the present day application seems to serve the system better,

while still respecting the protections of double jeopardy and the Charter.

If Canadian law enforcement and crown prosecutors implement DNA investigative

practices, the concerns brought up by legislators who created the double jeopardy exception

would cease to exist. The use of technology was an ideal course of action to correct decisions at

the beginning of the twenty first century. The Canadian model however, needs to steer away

from this dangerous corrective justice practice. Focus should be placed on using advanced

technologies and new police investigative practices to achieve the same result of discovering

accurate evidence for present day trials, similar to the double jeopardy exception procedures

attempt to embrace. The Canadian government also strengthened the use of this by creating the

DNA databank by passing DNA Identification Act216

, which consists of two collections, a crime

scene index, and a convicted offender’s index whom post-conviction DNA data bank orders have

214 Ibid, at pg. 107. 215 Ibid, at pg. 107. 216 DNA Identification Act, SC 1998, c 37.

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been made217

. This cataloged DNA database will aide in better verification of offenders through

pre-collected samples, and make up the technological gap that investigators had which the

exception attempts to close.

As for eyewitness evidence, to allow a retrial based solely on this type of evidence is

questionable because reliability of the information comes into play. Courts have long recognized

the frailties of identification evidence given by independent, honest and well-meaning

eyewitnesses218

. When the prosecution’s case depends substantially upon the accuracy of

eyewitness identification, a trial judge is required to instruct a jury on the need for caution when

dealing with such evidence219

, and instruct about the various factors that can affect the reliability

of eyewitness identification evidence reminding the jury that mistaken identification has been

responsible for miscarriages of justice by reason of the wrongful conviction of persons who have

been mistakenly identified by one or more honest witnesses220

.

Finally the UK Court of appeal has allowed retrials through the double jeopardy

exception because the acquitted individual made confessions after trial. There are bodies of

literature and case law dealing with confessions, but relying on this type of evidence as a

compelling factor is also troubling. There are cases where confessions have been proven false by

DNA evidence, and other such independent sources of evidence221

, so allowing this to be the sole

compelling factor leaves more questions about the evidence than it would attempt to answer at

another trial. Confessions may not be reliable or true in certain cases, and courts are reluctant to

admit certain confessions because of how they were obtained, or the intentions of the person

217 Canada, Department of Justice Canada, Report on the prevention of miscarriages of justice (Ottawa: FPT Heads

of Prosecutions Committee Working Group, 2004) (Chair: Rob Finlayson), online: <http://www.justice.gc.ca/eng/dept-min/pub/pmj-pej/pmj-pej.pdf>, at pg. 108. 218 Ibid, at pg. 49, see also R v Nikolovski (1996), 11 CCC (3d) 403 (SCC), at 412. 219 Ibid. 220 Ibid, at pg. 50, see also R v Sutton, [1970] 2 OR 358, [1970] 3 CCC 152 (CA). 221 Ibid, at pg. 58 , see also R v Oickle, [2000] 2 SCR 3 at para. 35.

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making the statement. The UK Court of Appeal in the Dunlop retrial was hesitant to allow

proceedings based on his confession alone. Because of the many contextual factors that go along

with a confession, it is difficult to see how a statement alone could be compelling.

Ultimately applying and evolving Canadian investigative practice would better serve the

interest of justice. The department of justice in their report make the findings that using all the

above mentioned factors would not only make decisions more accurate, but also avoid the need

for such an evidence exception to double jeopardy because the steps taken before initial

proceedings would provide the same investigative conclusion than allowing facts after the

investigation. This however is not perfect, and statistically there could be the rare case which

could bypass all these methods and be barred by the Charter after final judgment, but the

exception to double jeopardy is also applied in the rare case, so from a Canadian standpoint,

implementing the procedural practices would work, but there is no need for the evidence

exception.

2) Interference with the Administration of Justice

The second exception to double jeopardy, which was created by the reforms dealt with

situations where an accused had either tampered with the verdict or presented falsified

information at any stage of the trial process. Professor Martin Friedland is a leading expert in

criminal law and double jeopardy and argued in his book that Canadian legislation would be

desirable to deal with cases of tainted acquittals222

. In theory this would allow a court to overturn

decisions for interfering with the administration of justice. It would not run afoul to the double

222 Martin L. Friedland, My life in crime and other academic adventures (Toronto: University of Toronto Press,

2007) at pg. 87.

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jeopardy Charter protection, and specifically the protection afforded by common law issue

estoppel because it would allow a charge for an offence separate to the original charge.

Canadian case law has recognized these types of situations, and attempted to separate it

from the principles of res judicata. In Gushue223

the court blocked a plea for issue estoppel

because it was shown that the accused lied and committed perjury during the trial. The charge for

perjury could not be estopped because it had different requisites to the original crime, and this

Supreme Court ruling allowed new evidence to be admitted regarding the case even if it was not

available at the first trial. The Gushue case has allowed the state to retry cases for crimes of the

past, but on grounds of legal procedural infractions. Regardless of the category of the charged

offence, the ruling has allowed for something similar to an evidence exception to charge

individuals after the original trial.

In Gill224

after a tainted jury verdict, the Supreme Court allowed the crown to reintroduce

charges for homicide. The charges for the murder evidently were dropped, however Gill was

properly tried and convicted of obstruction of justice225

. Both cases bring up the realistic

situation of justice tampering, and currently these types of administration of justice principles are

protected in the common law. In its current state as legal precedent, Canadian courts do not see

these types of situations as a breach of the Charter protection prohibiting from a breach of double

jeopardy. Implementations of these types of charges have happened in all the previous legal

systems analyzed in this study, and in the cases of tainted acquittals, the English legislation could

serve as an excellent model for Canada226

.

223 Gushue v R [1980] 1 SCR 798, 16 CR (3d) 39, 50 CCC (2d) 417 (SCC). [hereinafter Gushue] 224 R v Gill [1989] 1 SCR 295. 225 See Friedland, supra note 222, at pg. 87. 226 Ibid.

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There does not seem to be any indication that these types of administration of justice

charges could upset or even breach the Kineapple principle or Issue Estoppel defenses.

Legislative implementation of such exceptions would be the best course of action so that the

exception could be implemented and applied in a uniform fashion, and not have different legal

interpretations dilute this protection of the criminal justice process.

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IX. Conclusion

Both the law and technology in many of these areas discussed in this report continue to

evolve227

. The changes worldwide to double jeopardy attempted to fulfill a societal objective,

rather than a legal objective. Ushered in on the promise of crime control and convicting the

guilty, what it seems to have done is create a notion that really no one is truly acquitted. For

Canada, this change has brought about a dilemma regarding the Canadian interpretation and

application of double jeopardy. All the common law nations follow and uphold this protection as

the basis of the adversarial trial process. For all of the major common law jurisdictions to revise

a centuries old protection in such a short period of time, highlights some sort of fault that may

exist within its old form. Fortunately for the North American common law jurisdictions, double

jeopardy is a constitutionally codified procedural protection. Attempting to implement such

changes is not as simple as passing legislation. The values of the Canadian people of the past and

the values of the future include such a protection against double jeopardy.

The changes are to make up for the gaps in investigative practice of the past. However

the merits of the exception could still be implemented and followed without massive and

complex changes to the rule of double jeopardy228

. Implementations of new investigative

practices, coupled with technological advances will all provide more accurate evidence to be

used at the trial process. As complex as Canadian criminal procedure may be, it has the ability to

serve the interest of justice and deliver accurate charges without having a backup plan to bypass

double jeopardy. Canadian law is also evolving to allow subsequent charges after a final verdict

227 Canada, Department of Justice Canada, Report on the prevention of miscarriages of justice (Ottawa: FPT Heads of Prosecutions Committee Working Group, 2004) (Chair: Rob Finlayson), online:

<http://www.justice.gc.ca/eng/dept-min/pub/pmj-pej/pmj-pej.pdf>, at pg. 154. 228 Robyn Lincoln, “Should the double jeopardy rule be in jeopardy?” National Legal Eagle (2003, Vol 9, Issue 2,

Article 5) at pg.13, online: The National Legal Eagle

<http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1066&context=nle>.

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for crimes that are much more severe than the original charged. An Alberta judge ruled that two

prosecutions revolving around the same event did not represent double jeopardy229

because the

crimes had different requisite, even though charges were laid after a final decision.

Allowing the Canadian system to adapt to changing times and technologies seems to be a

better fit in respecting the rights of its citizens. Fluid evolution rather than forced change would

be more realistic and closer to the values of the Charter. Permitting the state to go back and

prosecute does not serve a greater purpose from a Canadian point of view. Rather, it would be

more beneficial to take the values of the double jeopardy reforms and enhance our current

criminal justice system with the issues that have been highlighted. Even implementing the

administration of justice offence exceptions, that case law has accepted; could help balance the

need for an overall exception to double jeopardy. If Canadian legislators ultimately create such

exceptions, this could then be a starting point of the debate to use the administration of justice

offence to bypass the original decision, and all a variation to the evidence exception, similar to

the legislation implemented in New Zealand. Canada is a tough fit for the “new double jeopardy”

because of the constitutional nature of the protection, paralleling the US constitutional

protections.

Making the system strong for today, will allow more accurate trials, and people of the

future to not question the decisions of yesterday. In the grand scheme, the other common law

jurisdictions also have the ability to repeal the double jeopardy exception and either go back to

the old model or create something more radical than the current incarnation. Regardless double

jeopardy is seen as a procedural right in Canada, and just because the others jumped, does not

mean Canada has to as well.

229 Geoffrey Scotton, “Alberta Double jeopardy case said setting a legal precedent – Pled to assault, charged with

murder when the victim died” (1999) The Lawyers Weekly, Apr 23, 18(47).

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Appendix A

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Appendix B